Round 1

 Round 1 / Team A (Selvas) 

Teams: The Selvas and the California Shore Commission 

General Background 

The Selvas are the new owners of a large coastal home in the city of Santa Lucia, on the central coast of California, which they inherited in March 2022 from Mrs. Selva’s Great Aunt Lucille. Aunt Lucille, an avid gardener, had owned and resided at the property since the mid-1960s. 

Shortly after moving in at the end of July from Colorado where they previously lived, the Selvas built a new, six-foot high, wooden and stone fence around the house, in part for privacy, and in part because of health and safety concerns associated with COVID-19. Their 2-year-old immunocompromised daughter has asthma and they are being very careful to protect her. Much to the dismay of nearby residents, the fence cuts off a footpath that runs along the north side of the house from the street to the beach. Neighborhood residents have used the path for many years. It’s the only safe access down to the beach for a mile, as there are steep cliffs on either side of the Selvas’ home. 

 A local coastal preservation organization, Seas For All, learned of the new fence, which blocked access from some of its members who regularly use the path to go surfing and fishing. Those members told Seas For All that they became concerned when a couple weeks before the fence went up, they noticed significant brush clearing along the perimeter of the lot. In mid-September, Seas For All tried talking to the Selvas, requesting that they restore the public’s longstanding access, but the Selvas weren’t interested in removing their new fence or allowing strangers to walk across their sideyard to get to the beach. Seas For All alerted the Shore Commission,¹ which had received complaints from other members of the community as well. The Commission began investigating the situation in November 2022, and determined that the fence, which has reduced access to and use of the water, constitutes “development” under the California Shoreline Act^.2 Under the Act, “development” is defined in part as anything that represents a “change in the intensity of use of water or access thereto” along the California coast, and requires that the proponent obtain a Shore Development Permit (SDP). The Selvas never applied for or received a permit before erecting the fence which has cut off long time beach access at least since late August. A city inspection certification for the fence completion was filed on August 20, though there are reports that the fence was blocking access in early August. Despite the treacherous cliff side, a few ultra-committed surfers have managed to make their way down along the side of the fence, in order to surf a couple of all-time swells at the surf break in front of the Selva’s property. 

The Shore Commission sent a Notice of Violation letter to the Selvas on January 19, 2023 informing them that the fence constitutes development under the Shoreline Act requiring an SDP, and that any non-exempt activity (which is the case here) conducted in the Shoreline Zone without an SDP constitutes a violation of the Act. The letter informed the Selvas that under the Act, unpermitted development that restricts public coastal access is subject to penalties of at least $1,000 and up to $15,000 per day for each day a violation exists, but that these administrative penalties would not be assessed if the property owner corrects the violation within 30 days.³ Accordingly, the Selvas were instructed to remove the fence, which could not be replaced until an SDP was obtained. Penalties would continue to accrue so long as the fence remained without a permit. 

The letter also informed the Selvas of the Shore Commission’s authority to (1) issue cease and desist orders, a violation of which can result in civil fines of up to $5,000 per day that a violation persists, and (2) initiate litigation to obtain injunctive relief and penalties, including, in addition to the foregoing $1,000 to $15,000 penalties per day for unpermitted development, up to $10,000 per day for “knowing and intentional” Shoreline Act violations. 

Three weeks after the Shore Commission sent its January 19, 2023 letter to the Selvas notifying them to remove the unpermitted development, Seas For All visited the property to check to see whether the fence has been removed. Seas For All used a drone to take some aerial photography and discovered that the fence was still standing and blocking the footpath, and that in addition, in the course of installing the fence, the Selvas had destroyed coastal sage scrub and seaside buckwheat that had previously lined the entire western boundary of the property. The sage and buckwheat covered property constitute an Environmentally Sensitive Habitat Area (ESHA) protected under the Shoreline Act. Based on Seas For All’s photos, it appears that the area cleared was around 18 feet wide for the length of the Selvas’ 132-foot long lot (approximately .54 of an acre of ESHA destroyed). Seas For All shared this information with the Shore Commission, for its investigation. 

Additionally, after receiving so many complaints from members of the community, in September, with help from Seas For All, the Shore Commission began conducting use surveys of Santa Lucia residents regarding their use of the path to go fishing, surf, walk their dogs, and otherwise access the beach for recreation, with some respondents claiming use for several decades. After assessing the survey results, the Shore Commission and Seas For All believe there’s a good argument that past public use has created a public prescriptive easement to continue using the path. In California, a public prescriptive easement is created where use of the property was open, notorious, continuous and adverse for an uninterrupted period of five years. 

By February 18, on the 30th day after receiving the Shore Commission’s notice, the Selvas had taken no steps to remove the fence. With an intensifying COVID surge, they weren’t keen on removing their new designer fence, and were so wrapped up in home renovations and helping to wrap up the details of Aunt Lucille’s estate, they let the 30-day deadline pass. 

With the fence still blocking access, and having learned of the impacts to ESHA and the potential for a public prescriptive easement claim, the Shore Commission promptly prepared a cease and desist order and restoration order, detailing: (1) the unpermitted fence development as a violation of the Act, (2) the destruction of the coastal sage scrub and seaside buckwheat (ESHA under the Act), which is subject to penalties of up to $10,000 a day and must be restored, and (3) the public’s longstanding use, which created a public prescriptive easement precluding blockage of public access. The order requires that, effective immediately, the fence shall be removed, and the ESHA shall be replanted and fully restored within 30 days. The Selvas received the letter on March 1, 2023. As the Commission’s initial letter had warned, a violation of the cease and desist order could result in additional civil fines of up to $5,000 per day that a violation persists. The Shore Commission further explained that it was prepared to initiate litigation, wherein it could obtain injunctive relief and penalties, including, in addition to other penalties, up to $10,000 per day for “knowing and intentional” Shoreline Act violations. 

Seas For All is closely monitoring the situation and in social media posts has encouraged the Commission to exert its maximum enforcement authority and indicated it is prepared to bring a separate action based on public prescriptive rights if access is not promptly restored. 

The Selvas continue to want to keep their fence up, and they question the prescriptive easement claim. As they recall, Aunt Lucille granted permission to some of her neighborhood friends to cross over her property to access the beach, and believe that access was interrupted for several months in 2020 during COVID lockdowns; accordingly, they don’t think that the use was “adverse” or “continuous” such that it would support a valid claim of prescription. However, they would like to avoid further penalties and the expense and uncertainty of litigation. A month after receiving the cease and desist letter, they approached the Commission to discuss potential settlement. 

The Selvas and Shore Commission are set to negotiate on March 24 and should agree upon: (1) the terms of public beach access at the site,⁴ and related access improvements; (2) remedies for the destruction of ESHA, and (3) penalties. 

In determining the amount of liability for unpermitted development under the Shoreline Act, the following factors are considered: 

(1) The nature, circumstance, extent, and gravity of the violation. 
(2) Whether the violation is susceptible to restoration or other remedial measures. 
(3) The sensitivity of the resource affected by the violation. 
(4) The cost to the state of bringing the action. 
(5) With respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require. 

The Commission will begin the negotiation. 

Confidential Facts for the Selvas 

The Selvas really value their privacy and private property rights. They are also extremely concerned about the ongoing COVID-19 pandemic, and protecting their daughter who is immunocompromised, has asthma, and has not yet received a vaccine per their pediatrician’s current advice. Therefore they will want to leave their fence in place, and keep members of the public a safe distance from their home. They also believe that the fact that some surfers have continued accessing the coast by scrambling down along the side of the fence weighs in their favor, as access hasn’t been entirely eliminated. They’ve even snapped photos on a few occasions of surfers crossing the property who seemed to be carrying beers. However, the Selvas don’t want to expend limited resources on battles in court. They are already investing a considerable amount of their savings into fixing up their newly inherited home, and do not have the funds for a protracted fight with the Shore Commission. They are also wary of the high penalties they could be subject to if they are unsuccessful in court, particularly those additional daily fees for “knowing and willful violations” and violating the cease and desist order. Additionally, if they leave the fence in place where it is or even attempted to obtain a Shore Development Permit, they anticipate that in that scenario they would still likely face the public prescriptive easement claim by either the Commission or another party with standing. Even if the Selvas settle with the Commission, if access is not restored, Seas For All has indicated it is closely watching the situation and is prepared to bring a separate lawsuit based on the public’s prescriptive rights. Therefore, the Selvas are willing to trade some of their privacy and inconvenience for a reduction in what they consider unfair and duplicative penalties designed for uncooperative parties, in order to avoid future potential lawsuits. But they are not willing to allow a twenty-four hour party in their side yard, and want to ensure public access will not put their family’s health at risk during the pandemic. 

Additionally, the Selvas are aware that under the Shoreline Act, the $1,000 to $15,000 per day penalties for unpermitted development depend on several factors including: the nature, circumstance, extent, and gravity of the violation; whether the violation can be remediated; the nature of the resources harmed; and voluntary remediation measures taken. They believe that as newcomers to California, having just moved from Colorado in July last year during a pandemic surge, who were not familiar with the Shoreline Act and who have not previously violated the Act, they should be subject to minimal penalties. They are also willing to consider remediation measures regarding access and ESHA, in exchange for a substantial reduction in penalties. However, to avoid the inconvenience of having to replant their yard, they may trade some greater offsite mitigation. 

Penalties 

The Selvas maintain that the fence was not fully erected and blocking their sideyard until August 20. Therefore, as of this negotiations meeting, their position is that access has only potentially been blocked for only 210 days. Moreover, since some surfers have continued accessing the beach, they believe there’s a good argument that access hasn’t even been fully blocked, and that violations haven’t accrued for nearly this many days. The fence was constructed fairly quickly, so they believe that the ESHA penalties shouldn’t have started accruing any earlier than that date, although they think their contractor may have started some clearing a bit earlier in preparation. However, if the case is litigated and a court doesn’t agree with their position on access, their understanding is that the following are potentially applicable penalties: 

	Statutory Min.	Statutory Max.
Fence (210 days)	$210,000 ($1,000 per day)	$3,150,000 ($15,000 per day)
ESHA (210+ days)		$2,100,000+
Cease and Desist Violation (17 days)		$85,000

Fence Penalties 

The Selvas think that given the factors considered in assessing penalties for the unpermitted fence development, they should not be subject to any more than the minimum amount of $210,000 in penalties incurred to date. With respect to the factors, they are new to California, having just moved from Colorado after the death of Aunt Lucille to their newly inherited home. Additionally, this was all during a worldwide pandemic, in which they are trying to keep their family safe and healthy. As such, it has been an extremely stressful time, they were not familiar with the Shore Commission or the Shoreline Act, and have no prior violations. Additionally, the Selvas are not deriving any economic profits from the construction of the fence. Additionally, as discussed below, they are willing to relocate the northern portion of the fence closer to the home, such that access can be restored very quickly, and will consider other access related improvements, in exchange for a substantial reduction in penalties. However, they realize it is unlikely that a court would assess the bare minimum daily penalties should the case proceed to litigation. 

ESHA Penalties 

For similar reasons, the Selvas believe that they should not be liable for the statutory maximum penalties associated with the ESHA impacts, particularly given the duplicative nature of the penalties in combination with the fence penalties, and the Selvas’ willingness to consider restoration or mitigation measures. The Selvas would like all of the ESHA penalties waived in exchange for restoration or mitigation commitments, as described below. 

Cease and Desist Order Violation Penalties 

The Selvas believe that because they reached out to the Shore Commission fairly soon after receiving the cease and desist order and have come to the Commission in good faith to negotiate, they should not be subject to the additional penalties for violating the order. Assuming the parties can reach an agreement on the other terms, the Selvas are willing to commit to a short timeframe for coming into compliance, in exchange for waiving these additional penalties. 

However, they are aware that they could face penalties for at least two weeks of noncompliance with the cease and desist order – between $5,000 per day, and up to $10,000 per day for knowing and intentional violations – should the parties proceed to litigation. 

Total Penalties & Cost of Improvements and Remediation 

The Selvas do not want to pay more than $275,000 total toward penalties, the cost of access improvements, and the cost of ESHA remediation. However, if need be, they have authorized spending up to $425,000 in order to reach a settlement today. 

Fence / Access 

With respect to the fence, the Selvas want to keep it surrounding the entire home, but they are willing to move it closer to the house on the northern border of the property, such that the path may be used for ingress and egress to the beach, in exchange for a substantial reduction of penalties. They estimate relocating the fence along the northern side would cost $2,000, and could be done within 30 days. 

However, they want orderly, non-intrusive access, particularly given that the pandemic is ongoing, and will not agree to 24-hour public access 7 days a week. They prefer access only between 9 am and 5 pm. They don’t want the noise and other nuisance associated with the public walking over their property at all hours of the day, and have already been surprised to see how many neighbors, surfers, and loud high schoolers regularly used the path to hang out at the beach, even before sunrise and after sunset. They anticipate that the Commission may want broader access, but the Selvas will insist on reasonable limitations – for example, they will want more restrictive access hours during the work week (Monday through Thursday) — and their consideration of any hours broader than 9 am to 5 pm must be in exchange for fewer required improvements or significantly lower penalties. If the Commission won’t settle for reasonable hours, the Selvas will want to hire a private security firm, at least during COVID, to guard the path’s entrance for extra protection, ensuring visitors don’t get too close to their home. Since they’d have to pay a considerable penny for that added security, they’ll want a reduction in penalties of at least $5,000 to help offset that cost. 

Given that the Commission contends that a public prescriptive easement exists on the property, the Selvas anticipate that the Commission may require them to record a public easement on the property. They strongly prefer not to, as they believe a public easement would considerably lessen the value of the property, in the range of half a million to one million dollars. When they learned about inheriting the home, they had set their sights on living in the home for the next 15-20 years, then selling it in order to take early retirement. They have little other savings put away for retirement at this point. Further, to their knowledge Aunt Lucille permitted several neighbors to use the path, which they are aware could preclude the establishment of a prescriptive claim. However, while the fence was being put in, and brush cleared, some workers found a couple of weathered No Trespassing signs along the side of the trail, which had been covered in dry brush, and the Selvas aren’t exactly sure how long they’d been there, and precisely where. Therefore, the Selvas have authorized agreeing to an easement only as a last resort measure, and only in exchange for a substantial reduction of penalties. Additionally, if they are recording an easement on the property they will not be willing to commit to as many access improvements (or will want even further reductions in penalties as compared to estimated costs for improvements). 

One voluntary measure they want to propose would be to re-landscape the side yard, at the top of the footpath, to incorporate low impact development measures. The yard is currently covered in water-intensive grass, except where the narrow footpath has worn it away, and Aunt Lucille had planted about 20 rose bushes immediately adjacent to the house. Sprinklers are installed to water the grass and rose bushes. The Selvas are willing to remove the roses, grass, and sprinklers, and install decomposed granite and native drought tolerant succulents along the path (and by removing the bushes, thereby also widen the path) in exchange for a substantial reduction in penalties. The Selvas believe this new environmentally friendly landscaping would benefit the public, as it would require less water and is in line with Santa Lucia’s water conservation program. The Selvas actually got the idea from checking out Seas For All’s website and learning about their “Water Friendly Gardens” program. The Selvas estimate this improvement would cost them $10,000 (but they know it will also help them save on their water bills in the long run). They would seek a reduction in penalties for this measure higher than the cost to re-landscape. 

The Selvas are aware that in other similar cases, the Commission has required property owners to allow public access signage and lighting on the property. If required by the Commission, they have authorized signage only if the nature of the sign is compatible with the property (e.g., it isn’t large), the Commission agrees to fund it, and for a reduction in penalties. The sign would also have to include restricted access hours that the Selvas are comfortable agreeing to, and that the path is only for ingress and egress to the beach, and loitering on the path is prohibited. Because the Selvas don’t want access on the path past 5 pm, they don’t believe that lighting should be required and don’t want to agree to it. They’d prefer to have an in-person private security guard anyways if access is required after dark. They are only willing to consider installing lighting so long as access is not allowed past 6 pm Mondays through Thursdays, and in exchange for reduced penalties. 

Aside from re-landscaping the top part of the path with low impact development, the Selvas are very reluctant to otherwise improve the path, for example by installing handrails or constructing a wooden walkway any part thereon, due to the cost and maintenance concerns. As a last resort, the Selvas would consider such measure so long as (1) they are not responsible for any maintenance, (2) the Commission indemnifies them for any injuries or damages sustained because of the walkway, (3) the Commission offers a substantial reduction in penalties in exchange for additional walkway improvements, and (4) the parties agree to more restrictive access hours Mondays through Thursdays. The Selvas value their privacy and the quietness of their home, and particularly value these during the work week. 

The foregoing steps would all be part of a package of access and improvements, and the Selvas want recognition of their uncontested resolution of the access issue and the provision of significant additional improvements in the form of substantially reduced penalties. Their willingness to agree to this package, as outlined, is dependent on the total cost in terms of penalties, cost of improvements, and cost for ESHA mitigation not exceeding $425,000. Otherwise, they feel that’s too much to pay under the circumstances and are prepared to go to court and argue that access wasn’t in fact cut off – surfers are continuing to walk along the edge of their property, down the cliff to the beach. 

ESHA 

If the Selvas are going to commit to any improvements to the path, they will not do on-site restoration. They enjoy having the additional open space in their backyard and do not want to re-landscape it. Additionally, in any event they want to keep their fence up completely around the house and along the western boundary of the property (particularly if they are allowing public access). For their information, however, they have consulted Aunt Lucille’s friend with a landscaping business. They’re considering using it for the proposed low impact development sideyard renovation. The friend has estimated that fully restoring the property to its prior condition will cost around $15,000. The Selvas would prefer to do off-site mitigation, and are aware of a local nature conservation organization that is restoring a coastal conservation easement property 20 miles up the coast, and would consider making a comparable donation of that amount toward habitat restoration and conservation there. 

They have authorized spending a little more for that offsite mitigation, if necessary to reach an agreement with the Commission today. 

Round 2 / Team A (Seas For All) 
Teams: Seas for All & Plastiques Inc. 

General Background 

Thirty miles south of the Selvas’ property, in the town of Santa Carla, Seas For All members conduct regular beach cleanups at Shells Beach, which is located a quarter mile south of the Bella Bay inlet. Bella Bay is a large coastal bay, popularly used for recreation by residents and tourists, and subsistence fishing by a local Tribe. Bella Bay is also integral to the local economy because of its use for commercial and recreational fishing, crabbing, and clamming. 

During monthly beach cleanups at Shells Beach, Seas For All members started finding plastic pellets on the shore slightly over a year ago (at the beginning of January, 2022). The pellets were small, cloudy-white, lentil sized disks. As per their usual beach cleanup procedures, the members keep records of all of the various types of debris collected during each cleanup (for example, the number of cigarette butts, plastic bottles, plastic straws, single-use plastic bags, bottle caps, and in this case, the number or weight of plastic pellets). The records from Seas For All’s cleanups indicate the dates, the names of the volunteers who pick up the trash, what each volunteer picked up individually, and the cumulative amount of trash cleaned from the beach. The volunteers also regularly take date-imprinted photographs of the trash picked up. 

At first, Seas For All didn’t know where the plastic pellets were coming from. Some members also regularly fish from the shore of the Bay, and about 6 weeks after Seas For All first noticed the pellets at Shells Beach, they began to notice a considerable number of plastic pellets washed up along the shore within the Bay. Each time they fished, the members would notice and pick up the pellets, growing more and more concerned about where the plastic was coming from. They began to bring extra buckets and filled them with pellets while they fished, and took photos of what they found. Seas For All also began hosting monthly beach cleanups along the shore within the Bay 10 months ago. At each cleanup, members continued to find plastic pellets (sometimes enough to nearly fill a 2-gallon bucket). They documented the trash collected, again with date-imprinted photographs, and written records. 

Fairly quickly, Seas For All suspected that the plastic pellets may have been coming from a major foreign-owned plastics manufacturer, Plastiques Inc., which has a plant located just .3 miles east from the mouth of Bella Bay. Plastiques has operated at this location in the Bay since 1987, and produces plastic pellets which are sold to other companies that use the pellets to make plastic products. Plastiques’ 2,000-acre plant sits on the southeastern side of the Bay, just south of Fall Creek. The plant includes five plastic production units, water and wastewater treatment systems, and a stormwater management system. Plastiques is a significant employer for Santa Carla, employing around 1,200 people in the town of 30,000. There are also early talks of a proposal to expand the plant, which would mean an additional 500 local jobs. However, it would also mean an additional 400 tons of toxic air pollution generated at the plant – doubling toxic, cancer-causing air emissions in Santa 
Carla. The expansion would require County and state permits, and permit applications have not yet been filed. 

Concerned about the plastic pellets, Seas For All did its own investigation and concluded that the pellets were coming from Plastiques’ plant. Pellets found along the Bay shore were particularly concentrated closer to the plant. Additionally, Seas For All investigated the plant from outside its chain link fence, and could clearly see plastic pellets on the ground, near a loading dock where pellets are loaded into shipping containers on trucks. The pellets looked just like those it was finding at the Bay and Shells Beach cleanups. 

Plastiques’ plant has 5 outfalls: outfalls 1 – 3 discharge treated wastewater into Fall Creek, which empties into Bella Bay 70, 45, and 20 meters from the outfalls, respectively (with Outfall 3 being the closest to Bella Bay), and outfall 4 and 5 discharge stormwater directly into Bella Bay. 

Seas For All conducted weekly site investigations from outside the property, photographing the cargo truck loading area from outside the fence, and visiting and photographing the outfalls via kayak between March 15, 2022 and February 1, 2023. Out of 46 site visits total, Seas For All has photographs showing plastic pellets on the ground in the loading area during 30 of these visits, and observed and filmed plastic pellets flowing from the outfalls during 35 of the visits. 

Additionally, the plant made headlines in late May 2022 when some fishermen reported seeing a highly unusual amount of white, floating debris coming from Fall Creek into Bella Bay. The Santa Carla Times photographed the event on May 25, 2022. The photos showed swirls of white floating debris emanating from outfalls 2 and 3, and along the shore of Fall Creek. 

Seas For All is concerned that fish, oysters, shore birds, and other aquatic species are ingesting the plastic pellets, causing harm to these species both from the plastics themselves and toxins that adsorb to the plastic. Seas For All is additionally concerned about potential harms to human health as the plastic makes its way up the food chain (toxic bioaccumulation), as well as negative impacts on the commercial and recreational fishing, crabbing, and clamming industries in the Bella Bay and Santa Clara community. Several Seas For All members are commercial fishermen and women whose livelihoods rely on a healthy aquatic habitat in the Bay. They are additionally concerned about the impacts the plastic and toxic bioaccumulation could have on Tribal members who regularly eat fish from the Bay and nearby ocean, as well as impacts to members of the public who regularly swim and recreate in the Bay. Many people use kayaks and stand up paddleboard in the Bay, as well as surf and recreate at the jetties where the Bay meets the ocean and at nearby beaches including Shells Beach. 

Plastiques’ National Pollutant Discharge Elimination Systems (NPDES) permit, issued under the Clean Water Act1, allows it to discharge treated wastewater and stormwater into Bella Bay and stormwater into Fall Creek. Both Bella Bay and Fall Creek are navigable waters of the United States that come within the Clean Water Act’s jurisdictional scope. Plastiques’ permit prohibits the discharge of floating solids in other than “trace amounts” from all outfalls. California Water Agency2 regulations prohibit the discharge of “floating debris and suspended solids” into surface waters. This rule is incorporated by reference into Plastiques’ permit. The permit also requires that Plastiques report any permit noncompliance including any discharges of floating solids or foam, within 24 hours to the Water Agency. 

In May 2022, Seas For All contacted the EPA and the California Water Agency, encouraging that they bring an enforcement action against Plastiques, for violating its permit by discharging the plastic pellets into Bella Bay, and failing to report permit noncompliance. Despite petitions encouraging the agencies to act, the highly impacted agencies have thus far failed to prosecute, given limited resources. 

However, Seas For All heard from a partner organization that, following Seas for All’s contact, the Water Agency had conducted its own investigation. Seas for All made a California Public Records Act (PRA) request to the Water Agency for any inspections reports or documents relating to violations of Plastiques’ NPDES permit, and received 8 inspection reports, which are summarized as follows: 

Date	Inspector	Observation
6/6/2022	S. Blalock	Small white pellets observed in the duckweed along the shore near Outfalls 2 and 4. Similar white pellets observed on the ground in the concrete loading dock area where pellets are loaded into cargo containers to be trucked off the premises, within 5 meters from a storm drain on the ground.
7/1/2022	J. Harvey	Small white floating debris, like confetti, originating in front of Outfalls 2 and 4 and along the adjacent shore of Falls Creek; debris observed approximately 20 meters downstream where the Creek meets Bella Bay. Small tears in screens before outfalls 2 and 4 are still observable.
8/5/2022	S. Blalock	White pellets observed along the shoreline grass downstream from Outfalls 1-3.
9/3/2022	S. Blalock	Arrived to see cargo container being loaded with plastic pellets. Observed significant spillage of pellets onto the concrete ground during the loading, with an estimated 10 gallons of pellets spilled. This was very close to a storm drain on the ground. It was raining, and considerable flooding was observed in the loading dock and elsewhere on the property. Instead of going inside the facility immediately after observing the spill, inspected the outfall area, and observed floating white pellets flowing from outfall 4.
9/27/22	J. Harvey	No pellets observed in the cargo loading dock area. Walked along Fall Creek shoreline, and did not observe any solid floating debris coming from Outfalls 1-3, but saw some floating white pellets stuck in the grasses along the shore downstream from Outfall 3. No pellets observed along Bella Bay shoreline on either side of Outfalls 4 and 5.
10/27/22	J. Harvey	No pellets observed in the cargo loading dock area. No pellets observed in the vicinity of Outfalls 4 and 5. Observed some pellets along shoreline downstream of Outfall 2 and 3 in Fall Creek.
12/15/22	S. Blalock	About 10 pellets observed on the ground in the cargo loading area. No tears in screens observable before Outfalls 2 and 4. Observed small amount of white plastic pellets along the shore downstream from Outfalls 1 and 2, and small white pellets along the Bella Bay shore in front of the plant.

Given the EPA and California Water Agency’s failure to bring an enforcement action, at the beginning of February 2023, Seas For All sent a Notice of Intent (NOI) to sue Plastiques under the Clean Water Act’s citizen suit provision.³ The 60-day notice period is about to expire. Seas For All has indicated it is prepared to file a complaint in the U.S. District Court for the Middle District of California, seeking injunctive relief, maximum statutory penalties, and attorneys’ fees and expert costs. Discharges in violation of an NPDES permit are subject to civil penalties of up to $45,000 per day of violation, while failure to report a violation is subject to civil penalties of up to $10,000 per day, for each day from the time a violation occurs until the violation is reported.⁴ 

As noted in Seas For All’s NOI, its expert Dr. Jody Sanchez has identified the following deficiencies in Plastiques’ wastewater system, which if remedied would prevent the discharge of plastic pellets: (1) the incidental nature of plastic pellet removal and failure to have a dedicated unit to remove solids; and (2) problems with screens before outfalls 2 and 4 (poor design selection, and screens are inappropriately sized for the flow rate produced by the system’s pumps; as well as improper maintenance which can cause water to overflow or break the screen). Dr. Sanchez has also identified problems with the stormwater system including (1) the internal concrete piping system and outfalls fail to prevent pellets from reaching downstream; (2) the hydraulic capacity of Plastique’s drainage system is inadequate to prevent flooding, which leads to overflows and contributes to the discharge of plastics; and (3) inadequate cleanup of pellet spills within the cargo container loading area, which allows pellets to enter the storm drain system and exit the outfalls. 

However, preferring that any penalties go toward a local environmentally beneficial project for the affected community, Seas For All is willing to explore settlement, so long as Plastiques will also commit to all necessary recommended technical fixes in order to stop future discharge of plastic pellets. The parties will negotiate: (1) the amount of the settlement payment that will fund an environmentally beneficial project(s) (“EBP”); (2) what the EBP(s) will entail; (3) technical improvements to Plastique’s facility, processes, and operations); and (4) attorneys’ and expert fees. 

Seas for All will begin the negotiation. 

Confidential Facts for Seas For All 

Seas For All’s primary goal is ending Plastiques’ discharges of plastic pellets into Bella Bay and Fall Creek once and for all. It’s therefore very important that Plastiques commit to improvements to its facilities and operations, per Dr. Sanchez’s expert recommendations, that will prevent such discharges. It also wants to ensure that Plastiques is penalized sufficiently to incentivize it to ensure future compliance with its permit. If the value of the settlement amount is too small, industrial permittees like Plastiques may consider it more economically beneficial to continue to violate their permits and pay “slap on the wrist” penalties. 

Seas For All will absolutely require that Plastiques agree to (1) replacing the dedicated unit to remove solids with a new system (2) replacing the internal concrete piping system, and (3) installing new micro-mesh screens, though it hopes for additional commitments from Plastiques described below. While Seas For All believes that under the Clean Water Act, maximum statutory penalties would exceed $100 million, it is willing to settle in exchange for a well-funded package of environmentally beneficial project(s)(“EBPs”). It will initially pursue $30 million for the EBPs, but is willing to accept as low as $6.4 million, in exchange for Plastiques’ commitment to implementing additional technical improvements, including cargo loading operational improvements, as well as other potential commitments described below. While they want to recover attorneys’ fees owed so that their attorneys are properly compensated for their work, Seas for all is being represented pro bono by highly qualified counsel, so the potential for high attorneys’ fees is not a disincentive to Seas For All moving forward with litigation if the above goals are not attained through settlement. 

Technical Improvements 

Based on an initial phone call that Seas For All attorneys had with Plastiques attorneys (and in part based on Seas For All’s expert’s recommendations), possible technical improvements to Plastiques’ facility and operations which the parties may discuss today include: 

• Constructing a new unit dedicated to removing solids from the plant wastewater 
• Needs for the concrete piping portion of the stormwater system 
• Installing new micro-mesh screens, with improved design (with finer mesh than existing screens) to appropriately filter out plastic pellets are also required 
• Constructing a new reservoir to alleviate flooding at the facility 
• Improving cargo Loading operations to minimize spillage 
• Hiring a shoreline cleanup team from Sunrise Environmental Inc.., an environmental remediation services company, to conduct twice monthly shoreline cleanups, removing any residual plastic pellets. 
• Contracting for a water vacuum cleanup by Sunrise Environmental Inc. on a weekly basis, while operating.

Regardless of the other elements of its demand, Seas for All will not settle without agreement to (1) a new dedicated unit to remove solids, (2) replacing the internal concrete piping system, and (3) new micro-mesh screens, with improved design to appropriately filter out plastic pellets (these are an improvement beyond the screens currently used by Plastiques). Per Dr. Sanchez, these are the most critical fixes that are necessary to stop the ongoing discharge of plastic pellets from the stormwater and wastewater treatment systems. Replacing the concrete piping portion of the stormwater system is necessary to prevent stormwater overflows that have led to pellet spills from outfalls 4 and 5. 

These are estimated to cost: 

Dedicated solids unit $3 million 
Concrete Piping System $7 million 
New micro-mesh screens $500,000 

If Plastiques commits to making these improvements, Seas for All will be willing to reduce the amount it will require be paid toward the Environmentally Beneficial Project(s), in at least the amount they are estimated to cost. Seas for All will be willing to grant higher reductions the more cooperative Plastiques is being. 

Seas for All also believes, based on its observations at the plant and also Dr. Sanchez’s expert opinion, that it’s critical that Plastiques implement measures to prevent plastic discharges to stormwater associated with Plastiques’ cargo loading operation, such as covering stormdrains in the loading area when loading occurs, not loading containers during rain events, and ensuring prompt ground cleanup to remove any spilled pellets after each loading. Seas For All anticipates Plastiques may be reluctant to agree to this measure, as it could require increasing the plant staff. If Plastiques commits to making these improvements, Seas for All will be willing to reduce the amount it will require be paid toward the Environmentally Beneficial Project(s) up to the following amounts (higher amounts dependent on how cooperative Plastiques is being): 

Cargo Loading Improvements $2 – 4 million 

If Plastiques is willing to commit to all four of the above-described improvements (a dedicated solids unit, the new concrete piping system, new micro-mesh screens, and the cargo loading improvements) it is willing to offer up significantly greater reduction in penalties. 

Seas for All also strongly wishes for Plastiques to agree to the following technical improvements, and is willing to reduce the amount it will require in the settlement payment in the amounts below: 

Improvement Max Reduction 
Reservoir construction Up to $1.25 million 
Sunrise Enviro vacuum Up to $400,000 

Vacuum and twice-monthly shore cleanup Up to $1 million 
Vacuum and once-monthly shore cleanup Up to $500,000 
Sunrise Enviro shore cleanup (2x / mo); without vacuum Up to $50,000 
Sunrise Enviro shore cleanup (1x / mo); without vacuum Up to $25,000 

Of the two Sunrise Environmental Inc. remediation operations, Seas For All’s first choice would be for Plastiques to commit to conducting a weekly water vacuum, as it’s much more difficult to clean up pellets that are still in the water. Hiring a professional environmental remediation company would be extremely beneficial, and ensure that any existing pollution that has already discharged from the plant can be cleaned as expeditiously as possible (as opposed to waiting for it to wash up on shore and be cleaned by the shore cleanup team, or Seas For All; or risking its consumption by marine life such that it’s unable to be cleaned up). 

While shore cleanups by Sunrise Environmental would be a valuable bonus, Seas For All still intends to continue its regular beach cleanups, and likely its Bay cleanups, in order to clean up other kinds of litter that plague these areas, including single use plastic bags, bottles, cigarette butts, etc. Therefore it is only willing to offer a reduction in the penalty amount for shore cleanups if Plastiques first commits to contracting for the water vacuum. If Plastiques commits to contracting for the water vacuum and agrees to twice monthly cleanups with Sunrise Environmental, Seas For All would consider a penalty reduction of up to $1 million; if Plastiques contracts for the vacuum but will only hire Sunrise Environmental for a monthly cleaning, Seas For All would consider a penalty reduction of up to $500,000. 

Value of Environmentally Beneficial Projects (Settlement Amount) 

Seas For All’s expert Dr. Sanchez believes that given Plastiques’ failures with respect to (1) not having a dedicated solids removal unit within its wastewater system, (2) using inappropriately designed screens, and (3) failures within the stormwater system, it is “highly foreseeable and likely” that Plastiques has been discharging plastic pellets in more than “trace” amounts every single day of its operations. Based on the Clean Water Act’s 5-year statute of limitation, this would equate to 1,825 days of violations. Under the Act, violators are subject to civil penalties of up to $45,000 per day that a violation exists. This would equate to over $82 million dollars in penalties. With respect to the failure to report, based on Dr. Sanchez’s expert opinion that Plastiques has been violating its permit for the entire 5-year period, at the rate of $10,000 per day, this equates to an additional $18,250,000 for the failure to report. 

However, Seas For All questions whether a court would award the statutory maximum penalty amount. It is also most interested in ensuring Plastiques makes improvements to its facility and stops discharging plastic as soon as possible, and anticipates that litigation would be long and drawn out. It is also willing to accept a lower amount that will be applied to local Environmentally Beneficial Projects. 

Therefore, Seas for All believes that a reasonable starting position should be $30 million settlement payment towards EBPs. It wants Plastiques to agree to the absolute highest amount possible, though it’s willing to reduce the value of the EBP depending on the technical improvements Plastiques agrees to, as set forth herein. 

The absolute lowest value of an EBP(s) settlement payment Seas for All would accept is $6.4 million. This is based on: 

• Penalties for 45 days of discharge violation (45 x $45,000 = $2,025,000) o 35 days of violations, based on Seas For All’s own evidence of discharges 
  • 1 day based on the highly publicized media event 
  • 8 days based on the Water Agency’s inspection reports 
  • At least 1 presumed violation given all the debris collected prior to Seas For All’s and the Water Agency’s investigations since January 2021. 
• Penalties for failure to report violations.
  • If starting with the spill that contributed to the plastic pellet pollution Seas For All first observed January 6, 2022 at the Shell Beach Cleanup, this means at least 440 days with no reporting, which equates to $4.4 million. 

While this is the absolute lowest EBP amount Seas for All would settle for, they want to settle for the absolute highest amount possible in order to adequately penalize Plastiques for their significant pollution of the Bay and deter future violations by Plastiques and other bad actors. This is particularly important given environmental justice concerns presented. The local Tribe depends heavily on the Bay for subsistence fishing, and is bearing the burdens of significant water and air pollution from the plant. The health and safety impacts of Plastique’s pollution is particularly concerning, raising risks and exacerbating underlying health conditions during the COVID-19 pandemic, which has been devastating for the community. Additionally, given word in the community that Plastiques may be seeking to expand their facilitiy in the near future, Seas For All wants to ensure they’re strongly punished now and deterred from making future violations, when their plant would otherwise have even greater potential to pollute. 

Environmentally Beneficial Project(s) 

Seas for All would like to see: 

(1) 75% of the settlement amount go towards funding STOP (Stopping Tyranny of Plastics), another nonprofit organization’s plastics education and policy programs, and 

(2) 25% go towards a local university’s research study focused on microplastics in Bella Bay. 

STOP is a Seas For All coalition partner and well respected 501(c)(4) non-profit organization, dedicated exclusively to eradicating single use plastic pollution. The majority of STOP’s work is geared toward influencing plastics policies. STOP also has a program encouraging and helping businesses implement Extended Producer Responsibility takeback programs. 

Seas For All anticipates Plastiques may be hesitant to commit to funding STOP. Seas For All is willing to offer an additional reduction in the penalty payment (up to $1 million) if Plastiques agrees that at least 75% of the settlement amount will fund one of STOP’s programs. 

While Seas for All would be pleased for Plastiques to fund these projects, they believe it’s Plastiques’ duty, given their egregious plastic pollution of the Bay. Seas For All will want to ensure that any of Plastiques’ communications with respect to this agreement, and any actions taken pursuant to it, will not amount to greenwashing. 

Attorneys’ Fees and Expert Costs 

Seas For All’s attorneys have incurred $100,000 in attorneys’ fees to date based on the hours worked and reasonable market rates, and Seas For All has paid $30,000 in expert fees for Dr. Sanchez. 

Seas For All is willing to accept no less than $85,000 in attorneys’ fees and expert fees, assuming Plastiques commits to at least (1) constructing a new dedicated solids unit; (2) replacing the concrete piping system; (3) installing new micro-mesh screens; (3) implementing the cargo loading improvements; and (4) contracting for the Sunrise Environmental vacuum (on at least a weekly basis). 

If Plastiques is cooperative and negotiating in good faith, Seas For All is willing to waive fees for its attorneys’ hours spent in negotiation. 

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Round 1 

1 The Shore Commission is generally based on the California Coastal Commission, but is not bound by the Coastal Commission’s regulations or processes. Students should only rely on the facts provided in this fact pattern. 

2 The Shoreline Act is generally based on the California Coastal Act, but is not identical to the California Coastal Act. Students should only rely on the facts provided in this fact pattern.  

3 In determining the amount of liability for unpermitted development under the Shoreline Act, the following factors are considered: 

(1) The nature, circumstance, extent, and gravity of the violation. 
(2) Whether the violation is susceptible to restoration or other remedial measures. 
(3) The sensitivity of the resource affected by the violation. 
(4) The cost to the state of bringing the action. 
(5) With respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require.  

4 California’s Recreational Use Statute protects private landowners from liability for injuries suffered by people who enter their land free of charge for recreational purposes. Therefore, this should not be a concern for property owners like the Selvas in considering the public access issue.  

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Round 2

1 The Clean Water Act is generally based on the Federal Clean Water Act, but students should only rely on the facts provided in this fact pattern. 

2 The California Water Agency (a fictitious name and agency based loosely on the California Water Board) has authority for regulating and enforcing the Clean Water Act in California.  

3 A 60-day Notice of Intent to sue is required before citizen plaintiffs may file suit under the Clean Water Act. 

4 Penalty factors under the Clean Water Act include: 

• whether the violations are serious and cause harm 
• whether a permittee gains an economic benefit by failing to make system improvements sufficient to prevent violations 
• a permittee’s history of Clean Water Act violations 
• whether a permittee has made good faith efforts to comply with a long term problem economic impact on company  

 Round 1 / Team B (Shoreline Commission) 

Teams: The Selvas and the California Shore Commission 

General Background 

The Selvas are the new owners of a large coastal home in the city of Santa Lucia, on the central coast of California, which they inherited in March 2022 from Mrs. Selva’s Great Aunt Lucille. Aunt Lucille, an avid gardener, had owned and resided at the property since the mid-1960s. 

Shortly after moving in at the end of July from Colorado where they previously lived, the Selvas built a new, six-foot high, wooden and stone fence around the house, in part for privacy, and in part because of health and safety concerns associated with COVID-19. Their 2-year-old immunocompromised daughter has asthma and they are being very careful to protect her. Much to the dismay of nearby residents, the fence cuts off a footpath that runs along the north side of the house from the street to the beach. Neighborhood residents have used the path for many years. It’s the only safe access down to the beach for a mile, as there are steep cliffs on either side of the Selvas’ home. 

A local coastal preservation organization, Seas For All, learned of the new fence, which blocked access from some of its members who regularly use the path to go surfing and fishing. Those members told Seas For All that they became concerned when a couple weeks before the fence went up, they noticed significant brush clearing along the perimeter of the lot. In mid-September, Seas For All tried talking to the Selvas, requesting that they restore the public’s longstanding access, but the Selvas weren’t interested in removing their new fence or allowing strangers to walk across their sideyard to get to the beach. Seas For All alerted the Shore Commission,¹ which had received complaints from other members of the community as well. The Commission began investigating the situation in November 2022, and determined that the fence, which has reduced access to and use of the water, constitutes “development” under the California Shoreline Act.² Under the Act, “development” is defined in part as anything that represents a “change in the intensity of use of water or access thereto” along the California coast, and requires that the proponent obtain a Shore Development Permit (SDP). The Selvas never applied for or received a permit before erecting the fence which has cut off long time beach access at least since late August. A city inspection certification for the fence completion was filed on August 20, though there are reports that the fence was blocking access in early August. Despite the treacherous cliff side, a few ultra-committed surfers have managed to make their way down along the side of the fence, in order to surf a couple of all-time swells at the surf break in front of the Selva’s property. 

The Shore Commission sent a Notice of Violation letter to the Selvas on January 19, 2023 informing them that the fence constitutes development under the Shoreline Act requiring an SDP, and that any non-exempt activity (which is the case here) conducted in the Shoreline Zone without an SDP constitutes a violation of the Act. The letter informed the Selvas that under the Act, unpermitted development that restricts public coastal access is subject to penalties of at least $1,000 and up to $15,000 per day for each day a violation exists, but that these administrative penalties would not be assessed if the property owner corrects the violation within 30 days.3 Accordingly, the Selvas were instructed to remove the fence, which could not be replaced until an SDP was obtained. Penalties would continue to accrue so long as the fence remained without a permit. 

The letter also informed the Selvas of the Shore Commission’s authority to (1) issue cease and desist orders, a violation of which can result in civil fines of up to $5,000 per day that a violation persists, and (2) initiate litigation to obtain injunctive relief and penalties, including, in addition to the foregoing $1,000 to $15,000 penalties per day for unpermitted development, up to $10,000 per day for “knowing and intentional” Shoreline Act violations. 

Three weeks after the Shore Commission sent its January 19, 2023 letter to the Selvas notifying them to remove the unpermitted development, Seas For All visited the property to check to see whether the fence has been removed. Seas For All used a drone to take some aerial photography and discovered that the fence was still standing and blocking the footpath, and that in addition, in the course of installing the fence, the Selvas had destroyed coastal sage scrub and seaside buckwheat that had previously lined the entire western boundary of the property. The sage and buckwheat covered property constitute an Environmentally Sensitive Habitat Area (ESHA) protected under the Shoreline Act. Based on Seas For All’s photos, it appears that the area cleared was around 18 feet wide for the length of the Selvas’ 132-foot long lot (approximately .54 of an acre of ESHA destroyed). Seas For All shared this information with the Shore Commission, for its investigation. 

Additionally, after receiving so many complaints from members of the community, in September, with help from Seas For All, the Shore Commission began conducting use surveys of Santa Lucia residents regarding their use of the path to go fishing, surf, walk their dogs, and otherwise access the beach for recreation, with some respondents claiming use for several decades. After assessing the survey results, the Shore Commission and Seas For All believe there’s a good argument that past public use has created a public prescriptive easement to continue using the path. In California, a public prescriptive easement is created where use of the property was open, notorious, continuous and adverse for an uninterrupted period of five years.

By February 18, on the 30th day after receiving the Shore Commission’s notice, the Selvas had taken no steps to remove the fence. With an intensifying COVID surge, they weren’t keen on removing their new designer fence, and were so wrapped up in home renovations and helping to wrap up the details of Aunt Lucille’s estate, they let the 30-day deadline pass. 

With the fence still blocking access, and having learned of the impacts to ESHA and the potential for a public prescriptive easement claim, the Shore Commission promptly prepared a cease and desist order and restoration order, detailing: (1) the unpermitted fence development as a violation of the Act, (2) the destruction of the coastal sage scrub and seaside buckwheat (ESHA under the Act), which is subject to penalties of up to $10,000 a day and must be restored, and (3) the public’s longstanding use, which created a public prescriptive easement precluding blockage of public access. The order requires that, effective immediately, the fence shall be removed, and the ESHA shall be replanted and fully restored within 30 days. The Selvas received the letter on March 1, 2023. As the Commission’s initial letter had warned, a violation of the cease and desist order could result in additional civil fines of up to $5,000 per day that a violation persists. The Shore Commission further explained that it was prepared to initiate litigation, wherein it could obtain injunctive relief and penalties, including, in addition to other penalties, up to $10,000 per day for “knowing and intentional” Shoreline Act violations. 

Seas For All is closely monitoring the situation and in social media posts has encouraged the Commission to exert its maximum enforcement authority and indicated it is prepared to bring a separate action based on public prescriptive rights if access is not promptly restored. 

The Selvas continue to want to keep their fence up, and they question the prescriptive easement claim. As they recall, Aunt Lucille granted permission to some of her neighborhood friends to cross over her property to access the beach, and believe that access was interrupted for several months in 2020 during COVID lockdowns; accordingly, they don’t think that the use was “adverse” or “continuous” such that it would support a valid claim of prescription. However, they would like to avoid further penalties and the expense and uncertainty of litigation. A month after receiving the cease and desist letter, they approached the Commission to discuss potential settlement. 

The Selvas and Shore Commission are set to negotiate on March 24, and should agree upon: (1) the terms of public beach access at the site,4 and related access improvements; (2) remedies for the destruction of ESHA, and (3) penalties. 

In determining the amount of liability for unpermitted development under the Shoreline Act, the following factors are considered: 

(1) The nature, circumstance, extent, and gravity of the violation. 
(2) Whether the violation is susceptible to restoration or other remedial measures. 
(3) The sensitivity of the resource affected by the violation. 
(4) The cost to the state of bringing the action. 
(5) With respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require. 

The Commission will begin the negotiation. 

Confidential Facts for the Shore Commission 

The Shore Commission would like to settle this matter quickly. It wants to ensure public access is maintained at this site, but if the matter is fully litigated, the Commission is uncertain that it can prevail on its public prescriptive easement claim. Hundreds of members of the public completed the Commission’s use survey describing their use of the path dating back several decades, and dozens noted doing so despite the presence of “No Trespassing” signs; however, there are still difficulties with the “adversity” issue. However, in any settlement, the Commission not only wants access and the ESHA restored immediately, but particularly wants to adequately penalize the Selvas for their unpermitted development, interference with public access, and destruction of ESHA. It’s important to the Commission to ensure the penalties are high enough, along with the access improvements and ESHA restoration and /or mitigation, to deter others from engaging in unpermitted development. The penalty amount will be made as a payment to the Violation Remediation Account of the California Shoreline Conservancy Fund for use at other sites. The Shore Commission will want the largest penalty amount possible so that it can advance its public access work throughout the state as much as possible outside of this dispute. While the Commission understands that these are unordinary times with the COVID pandemic, and that there are concerns for health and safety, it has seen a significant rise in beachfront property owners blocking access under the pretense of COVID concerns, and it will not allow unreasonable closures to go unenforced. While the Commission may take COVID concerns in account to a limited extent as described below, it also wants to send a signal to others in the state with this case that property owners will not get away with restricting public access to the state’s public trust beaches. The public needs access to its beaches more than ever as a sanctuary for recreation and respite during these times. 

Penalties 

Based on its use survey of local residents, the Shore Commission believes that the Selvas’ fence may have cut off public access since August 2, 2022, meaning the fence has currently violated the Shoreline Act for 228 days. However, the earliest physical evidence they have of the fence blocking access is August 13. The Commission plans to pursue penalties for the entire 228 days initially, and on that basis, believes that the following are the potentially applicable amounts: 

	Statutory Min.	Statutory Max.
Fence (228 days)	$228,000 ($1,000 per day)	$3,420,000 ($15,000 per day)
ESHA (228+ days)		$3,420,000 ($15,000 per day)
Cease and Desist Violation (14 days)		$70,000

The Commission also has reason to believe that ESHA may have been destroyed more than a week before the fence blocked access, and thinks it could prove at least 235 days of violation if the case proceeds to litigation. 

In determining the amount of liability for unpermitted development under the Shoreline Act, the following factors are considered: 

(1) The nature, circumstance, extent, and gravity of the violation. 
(2) Whether the violation is susceptible to restoration or other remedial measures. 
(3) The sensitivity of the resource affected by the violation. 
(4) The cost to the state of bringing the action. 
(5) With respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require. 

Applying these factors, the Commission thinks that $684,000 is a very reasonable starting penalty amount to seek (i.e., the “starting penalties”) for the fence and access violation (at $3,000 per day the violations), so long as the Selvas are willing to restore access immediately. To date, the Selvas have blocked the public’s access for nearly eight months, so the penalty must reflect the harm that has been done to the public and their right to access the public trust shoreline. However, they also realize that they may have a difficult time proving access was blocked for the entire 228 days (since the earliest physical evidence they have (a photograph from Seas For All) is from August 13); and they are also willing to considerably reduce these penalties in exchange for the Selvas’ commitment to prompt restoration of access, and implementation of acceptable access improvements (discussed below). 

The Commission is willing to waive the ESHA penalties if the Selvas commit to acceptable restoration or mitigation (as described below). If the Selvas are cooperative and willing to restore access quickly, and otherwise agree to acceptable access improvements and ESHA remediation, the Commission is also willing to waive some of the penalties for violating the cease and desist order, even though it took nearly a month for the Selvas to reach out to the Commission, given that the COVID pandemic may have contributed to their delayed response . 

Access / Fence 

For any acceptable deal, the Commission will require immediate restored access. Without this commitment, the Commission cannot continue negotiations discussions. The Commission will also require that the Selvas commit to recording an easement for ingress and egress to the beach, as even if the Selvas commit to restored access in this agreement, that won’t guarantee the access remains protected if the property is later transferred to a different owner. The Commission also doesn’t want to have to expend its resources enforcing the agreement if the Selvas later violate that part of the agreement and block access again. The Commission has authorized a reduction in the penalties of up to $150,000 in exchange for recording the easement. 

The Commission also strongly desires that public access be available 24/7, particularly as it is the only safe access point within at least a mile along this stretch of coast. However, the Commission anticipates pushback from the homeowner, particularly from what it has heard about the Selvas’ prior conversations with members of Seas For All. It is willing to accept public access from 6 am to 10 pm during spring and summer, and 6 am to 8 pm during fall and winter. The Commission has authorized a reduction from the starting penalties if the Selvas agree to access for a minimum of these hours. While not as ideal, if necessary to reach an agreement, the Commission would also accept annual access from 6 am to 8 pm Monday through Thursday, and 6 am to 10 pm Friday through Sunday, but is not willing to offer a significant reduction in penalties for this level of access. 

The Commission is further willing to offer a reduction from the starting penalties, in the following amounts if the Selvas will commit to the following improvements. 

• If they agree to 1 of the below improvements – authorized reduction up to $35,000 
• If they agree to 2 of the below improvements – authorized reduction up to $80,000 
• If they agree to all 3 of the below improvements – authorized reduction up to $125,000 

First, the Commission will strongly want the Selvas to allow a public access sign to be installed by the street, on the Selvas’ property, indicating the footpath, in order to settle. The Shore Commission would fund and maintain the sign, proposed to be no larger than 2’ x 16” and wooden. 

The Commission would also like the Selvas to commit to installing lighting along the footpath for access during the evening hours. The Commission estimates it will cost $2,000 to install a motion-sensored solar-lighting system (with no additional electricity costs to operate). The Selvas would fund the installation. 

The Commission would also like the Selvas to commit to installing (and paying for) a wooden walkway, with stairs, leading down the final steep section of the path, over an existing earthen berm. The walkway would start at the western edge of the Selvas’ grassy yard, where the path declines down to the beach. The Commission estimates this will cost $10,000 to install. The Commission would like for the Selvas to agree to share the cost to maintain the walkway for the first five years, with the Selvas’ contribution capped at up to $1,000 per year. The Commission notes that the walkway is also a benefit to the residents of the property as well as to outsiders seeking access to the beach. While California’s Recreational Use Statute protects private landowners from liability for injuries suffered by people who enter their land free of charge for recreational purposes, the Commission is also willing to indemnify the Selvas for any injuries or damages sustained as a result of a new walkway.

The Commission is also willing to consider reducing penalties for any additional voluntary access improvements proposed by the Selvas. 

ESHA Mitigation 

The Shore Commission has a strong preference for on-site restoration, which would include removing the fence along the western boundary of the property and replanting the coastal sage scrub and seaside buckwheat that was removed. For .54 acres of restoration, the Commission estimates this will cost $10,000. 

If the Selvas are only willing to commit to offsite mitigation, the Commission will require them to commit to making a donation towards a comparable restoration or conservation project worth double that amount, $20,000. This would not be paid to the Commission and is in addition to the penalty payment (it would go toward a separate project). 

Bottom Line 

The Commission wants to require the highest penalty payment – as close to its $759,000 starting offer ($684,000 access / fence penalties plus $70,000 cease and desist violation penalties)– and as many access related improvements as possible. As noted above, it’s important that penalties appropriately deter violators, and the Commission additionally utilizes the funds towards its other much-needed public coastal access efforts throughout the state. Additionally, while it is willing to forego some of the penalties it might ordinarily seek due to circumstances related to COVID-19, it still wants to flex its strong enforcement arm. 

In order to reach a settlement today, so long as the Selvas agree to (1) one of the foregoing ESHA mitigation measures, (2) restoring access, (3) recording a public easement on the property, (4) acceptable access hours, (5) public signage, and (6) funding the wooden walkway improvements, the Commission has authorized settlement for a penalty payment of at least $375,000 to the Violation Remediation Account of the California Shoreline Conservancy Fund. 

If the Selvas will commit to (1) recording the easement, (2) restoring access for the acceptable access hours, (3) public signage, and (4) one of the foregoing ESHA mitigation measures, but will not commit to the walkway improvement, the penalty payment must be at least $420,000. 

The Commission may also take into account any voluntary measures that the Selvas propose in determining whether and to what degree to accept these baseline penalty amounts. 

Round 2 / Team B (Plastiques, Inc.) 
Teams: Seas for All & Plastiques Inc. 

General Background 

Thirty miles south of the Selvas’ property, in the town of Santa Carla, Seas For All members conduct regular beach cleanups at Shells Beach, which is located a quarter mile south of the Bella Bay inlet. Bella Bay is a large coastal bay, popularly used for recreation by residents and tourists, and subsistence fishing by a local Tribe. Bella Bay is also integral to the local economy because of its use for commercial and recreational fishing, crabbing, and clamming. 

During monthly beach cleanups at Shells Beach, Seas For All members started finding plastic pellets on the shore slightly over a year ago (at the beginning of January, 2022). The pellets were small, cloudy-white, lentil sized disks. As per their usual beach cleanup procedures, the members keep records of all of the various types of debris collected during each cleanup (for example, the number of cigarette butts, plastic bottles, plastic straws, single-use plastic bags, bottle caps, and in this case, the number or weight of plastic pellets). The records from Sea For All’s cleanups indicate the dates, the names of the volunteers who pick up the trash, what each volunteer picked up individually, and the cumulative amount of trash cleaned from the beach. The volunteers also regularly take date-imprinted photographs of the trash picked up. 

At first, Seas For All didn’t know where the plastic pellets were coming from. Some members also regularly fish from the shore of the Bay, and about 6 weeks after Seas For All first noticed the pellets at Shells Beach, they began to notice a considerable number of plastic pellets washed up along the shore within the Bay. Each time they fished, the members would notice and pick up the pellets, growing more and more concerned about where the plastic was coming from. They began to bring extra buckets and filled them with pellets while they fished, and took photos of what they found. Seas For All also began hosting monthly beach cleanups along the shore within the Bay 10 months ago. At each cleanup, members continued to find plastic pellets (sometimes enough to nearly fill a 2-gallon bucket). They documented the trash collected, again with date-imprinted photographs, and written records. 

Fairly quickly, Seas For All suspected that the plastic pellets may have been coming from a major foreign-owned plastics manufacturer, Plastiques Inc., which has a plant located just .3 miles east from the mouth of Bella Bay. Plastiques has operated at this location in the Bay since 1987, and produces plastic pellets which are sold to other companies that use the pellets to make plastic products. Plastiques’ 2,000-acre plant sits on the southeastern side of the Bay, just south of Fall Creek. The plant includes five plastic production units, water and wastewater treatment systems, and a stormwater management system. Plastiques is a significant employer for Santa Carla, employing around 1,200 people in the town of 30,000. There are also early talks of a proposal to expand the plant, which would mean an additional 500 local jobs. However, it would also mean an additional 400 tons of toxic air pollution generated at the plant – doubling toxic, cancer-causing air emissions in Santa Carla. The expansion would require County and state permits, and permit applications have not yet been filed.

Concerned about the plastic pellets, Seas For All did its own investigation and concluded that the pellets were coming from Plastiques’ plant. Pellets found along the Bay shore were particularly concentrated closer to the plant. Additionally, Seas For All investigated the plant from outside its chain link fence, and could clearly see plastic pellets on the ground, near a loading dock where pellets are loaded into shipping containers on trucks. The pellets looked just like those it was finding at the Bay and Shells Beach cleanups. 

Plastiques’ plant has 5 outfalls: outfalls 1 – 3 discharge treated wastewater into Fall Creek, which empties into Bella Bay 70, 45, and 20 meters from the outfalls, respectively (with Outfall 3 being the closest to Bella Bay), and outfall 4 and 5 discharge stormwater directly into Bella Bay. 

Seas For All conducted weekly site investigations from outside the property, photographing the cargo truck loading area from outside the fence, and visiting and photographing the outfalls via kayak between March 15, 2022 and February 1, 2023. Out of 46 site visits total, Seas For All has photographs showing plastic pellets on the ground in the loading area during 30 of these visits, and observed and filmed plastic pellets flowing from the outfalls during 35 of the visits. 

Additionally, the plant made headlines in late May 2022 when some fishermen reported seeing a highly unusual amount of white, floating debris coming from Fall Creek into Bella Bay. The Santa Carla Times photographed the event on May 25, 2022. The photos showed swirls of white floating debris emanating from outfalls 2 and 3, and along the shore of Fall Creek. 

Seas For All is concerned that fish, oysters, shore birds, and other aquatic species are ingesting the plastic pellets, causing harm to these species both from the plastics themselves and toxins that adsorb to the plastic. Seas For All is additionally concerned about potential harms to human health as the plastic makes its way up the food chain (toxic bioaccumulation), as well as negative impacts on the commercial and recreational fishing, crabbing, and clamming industries in the Bella Bay and Santa Clara community. Several Seas For All members are commercial fishermen and women whose livelihoods rely on a healthy aquatic habitat in the Bay. They are additionally concerned about the impacts the plastic and toxic bioaccumulation could have on Tribal members who regularly eat fish from the Bay and nearby ocean, as well as impacts members of the public who regularly swim and recreate in the Bay. Many people use kayaks and stand up paddleboard in the Bay, as well as surf and recreate at the jetties where the Bay meets the ocean and at nearby beaches including Shells Beach. 

Plastiques’ National Pollutant Discharge Elimination Systems (NPDES) permit, issued under the Clean Water Act1, allows it to discharge treated wastewater and stormwater into Bella Bay and stormwater into Fall Creek. Both Bella Bay and Fall Creek are navigable waters of the United States that come within the Clean Water Act’s jurisdictional scope. Plastiques’ permit prohibits the discharge of floating solids in other than “trace amounts” from all outfalls. California Water Agency2 regulations prohibit the discharge of “floating debris and suspended solids” into surface waters. This rule is incorporated by reference into Plastiques’ permit. The permit also requires that Plastiques report any permit noncompliance including any discharges of floating solids or foam, within 24 hours to the Water Agency. 

In May 2022, Seas For All contacted the EPA and the California Water Agency, encouraging that they bring an enforcement action against Plastiques, for violating its permit by discharging the plastic pellets into Bella Bay, and failing to report permit noncompliance. Despite petitions encouraging the agencies to act, the highly impacted agencies have thus far failed to prosecute, given limited resources. 

However, Seas For All heard from a partner organization that, following Seas for All’s contact, the Water Agency had conducted its own investigation. Seas for All made a California Public Records Act (PRA) request to the Water Agency for any inspections reports or documents relating to violations of Plastiques’ NPDES permit, and received 8 inspection reports, which are summarized as follows: 

Date	Inspector	Observation
6/6/2022	S. Blalock	Small white pellets observed in the duckweed along the shore near Outfalls 2 and 4. Similar white pellets observed on the ground in the concrete loading dock area where pellets are loaded into cargo containers to be trucked off the premises, within 5 meters from a storm drain on the ground.
7/1/2022	J. Harvey	Small white floating debris in the vicinity of Outfall 2. Debris appeared to form a stream, flowing downstream with the flow of Falls Creek. Observed small tears in the screens located before outfalls 2 and 4.
7/23/2022	J. Harvey	Small white floating debris, like confetti, originating in front of Outfalls 2 and 4 and along the adjacent shore of Falls Creek; debris observed approximately 20 meters downstream where the Creek meets Bella Bay. Small tears in screens before outfalls 2 and 4 are still observable.
8/5/2022	S. Blalock	White pellets observed along the shoreline grass downstream from Outfalls 1-3.
9/3/2022	S. Blalock	Arrived to see cargo container being loaded with plastic pellets. Observed significant spillage of pellets onto the concrete ground during the loading, with an estimated 10 gallons of pellets spilled. This was very close to a storm drain on the ground. It was raining, and considerable flooding was observed in the loading dock and elsewhere on the property. Instead of going inside the facility immediately after observing the spill, inspected the outfall area, and observed floating white pellets flowing from outfall 4.
9/27/22	J. Harvey	No pellets observed in the cargo loading dock area. Walked along Fall Creek shoreline, and did not observe any solid floating debris coming from Outfalls 1-3, but saw some floating white pellets stuck in the grasses along the shore downstream from Outfall 3. No pellets observed along Bella Bay shoreline on either side of Outfalls 4 and 5.
10/27/22	J. Harvey	No pellets observed in the cargo loading dock area. No pellets observed in the vicinity of Outfalls 4 and 5. Observed some pellets along shoreline downstream of Outfall 2 and 3 in Fall Creek.
12/15/22	S. Blalock	About 10 pellets observed on the ground in the cargo loading area. No tears in screens observable before Outfalls 2 and 4. Observed small amount of white plastic pellets along the shore downstream from Outfalls 1 and 2, and small white pellets along the Bella Bay shore in front of the plant.

Given the EPA and California Water Agency’s failure to bring an enforcement action, at the beginning of February 2022, Seas For All sent a Notice of Intent (NOI) to sue Plastiques under the Clean Water Act’s citizen suit provision.³ The 60-day notice period is about to expire. Seas For All has indicated it is prepared to file a complaint in the U.S. District Court for the Middle District of California, seeking injunctive relief, maximum statutory penalties, and attorneys’ fees and expert costs. Discharges in violation of an NPDES permit are subject to civil penalties of up to $45,000 per day of violation, while failure to report a violation is subject to civil penalties of up to $10,000 per day, for each day from the time a violation occurs until the violation is reported.⁴ 

As noted in Seas For All’s NOI, its expert Dr. Jody Sanchez has identified the following deficiencies in Plastiques’ wastewater system, which if remedied would prevent the discharge of plastic pellets: (1) the incidental nature of plastic pellet removal and failure to have a dedicated unit to remove solids; and (2) problems with screens before outfalls 2 and 4 (poor design selection, and screens are inappropriately sized for the flow rate produced by the system’s pumps; as well as improper maintenance which can cause water to overflow or break the screen). Dr. Sanchez has also identified problems with the stormwater system including (1) the internal concrete piping system and outfalls fail to prevent pellets from reaching downstream; (2) the hydraulic capacity of Plastique’s drainage system is inadequate to prevent flooding, which leads to overflows and contributes to the discharge of plastics; and (3) inadequate cleanup of pellet spills within the cargo container loading area, which allows pellets to enter the storm drain system and exit the outfalls. 

However, preferring that any penalties go toward a local environmentally beneficial project for the affected community, Seas For All is willing to explore settlement, so long as Plastiques will also commit to all necessary recommended technical fixes in order to stop future discharge of plastic pellets. The parties will negotiate: (1) the amount of the settlement payment that will fund an environmentally beneficial project(s) (“EBP”); (2) what the EBP(s) will entail; (3) technical improvements to Plastique’s facility, processes, and operations); and (4) attorneys’ and expert fees. 

Seas for All will begin the negotiation. 

Confidential Facts for Plastiques 

Plastiques is aware that it has been discharging plastic pellets from its plant. However, it disputes that all of its discharges have been in more than “trace amounts” which are punishable under the Clean Water Act. It additionally doubts whether much of Seas For All’s volunteer collected evidence would be admitted or otherwise support findings of violations in court. Nevertheless, it is concerned that if this case goes to trial, it could potentially face significant penalties under the Clean Water Act, and that such a case could mean additional costly legal fees and expert costs. Therefore it is willing to make a limited payment towards agreeable environmentally beneficial projects (“EBP”, further described below), and commit to some technical improvements at its plant in order to address its plastic discharges and settle the case today. In general, in order to commit to any technical improvements, Plastiques will demand that it pay less toward the EBPs. Bottom line, while it believes $2.18 million is a reasonable amount to pay towards the EBPs, and would strongly prefer to spend no more than $15 million total, given the hefty penalties it could face if the case goes to court, it is willing to pay up to $30 million total towards an EBP, technical improvements, and Seas for All’s attorneys’ fees and costs. 

Technical Improvements 

Based on an initial phone call that Plastiques’ attorneys had with Seas For All attorneys, possible technical improvements to Plastiques’ facility and operations which the parties may discuss today include: 

• Constructing a new unit dedicated to removing solids from the plant wastewater 
• Needs for the concrete piping portion of the stormwater system 
• New micro-mesh screens, with improved design (with finer mesh than existing screens) to appropriately filter out plastic pellets are also required 
• Constructing a new reservoir to alleviate flooding at the facility 
• Cargo loading operations improvements (covering stormdrains in the loading area when loading occurs, not loading containers during rain events, and ensuring prompt ground cleanup to remove any spilled pellets after each loading; this will require hiring 3 additional full-time staff) 
• Hiring a shoreline cleanup team, from Sunrise Environmental Inc., an environmental remediation services company, to conduct twice monthly shoreline cleanups, removing any residual plastic pellets, for one year. 
• Contracting for a water vacuum cleanup by Sunrise Environmental Inc. on a weekly basis, while operating. 

If Plastiques commits to any of the above potential improvements, it expects to receive in return a reduction in the settlement payment amount that will fund a local environmentally beneficial project. 

Plastiques knows that constructing a new unit dedicated to removing solids will be one of the most expensive improvements, and therefore is only willing to commit to this if absolutely necessary to reach a settlement today, and for a substantial reduction in the settlement amount required to go towards an environmentally beneficial project. It expects this could cost $3 million to construct, and would require at least this much of a reduction from the EBP value in order to agree to this replacement.

Plastiques is extremely reluctant to replace the concrete piping system, which is a significant undertaking in terms of monetary cost (Plastiques estimates it would cost close to $10 million), and construction time. Replacing the piping would require a portion of the plant to shut down during the reconstruction, which could take 18 months or longer, significantly reducing the overall plant output (and bottom line) during that time. Plastiques would have to reduce its workforce proportionally during that time. Moreover, Plastiques’ engineers disagree with Dr. Sanchez’s opinion, and don’t believe it is a necessary step to come into compliance. Instead, Plastiques is willing to offer to conduct significant repairs to the system. This could be completed in less than six months, and would cost a fraction of the cost, at an estimated $1.5 million. Plastiques will only commit to replacing the concrete piping system as a last resort for reaching settlement today, and for a reduction in any EBP payment at least as high as the estimated cost to replace the system. 

As part of a settlement package, it is willing to commit to hiring the Sunrise Environmental shore cleanup team, for shoreline cleanups, but only once a month instead of twice a month (each cleanup is estimated to cost $2,000). While Seas For All has been conducting Bay and beach cleanups, Plastiques believes this measure will first and foremost address existing pollution concerns, but also have the secondary benefit of allowing Seas For All to focus their efforts on other priorities (including protecting local beach access and stopping harmful coastal development). However, in order to help restore its image in the community, Plastiques also wants to condition its agreement to hire Sunrise Environmental on Seas For All agreeing to host one joint kick-off cleanup with Plastiques and Sunrise in the Bay. The parties would agree to promote the event and highlight Plastiques’ commitment to being not only a significant employer in Santa Carla, but also a good environmental steward of the Bay. 

Plastiques believes however, that if it commits to implementing other improvements at its plant to prevent discharges, it should not have to commit additionally to the weekly Sunrise Environmental water vacuum (each estimated at $20,000). 

Plastiques does not believe it should have to install the new micro-mesh screens, which come with a hefty $500,000 price tag. Last December Plastiques replaced its prior screens with new ones, and the last inspection report from the Water Agency accurately reflected that there were no tears in the screen or pellet discharges observed. Plastiques will only agree to installing new micro-mesh screens if absolutely necessary to reach settlement today, and for a significant reduction in the EBP payment amount. 

Plastiques will not commit to reservoir construction (which it estimates at $2.5 million) if it agrees to the cargo loading improvements, which it prefers. It doesn’t believe both measures are needed. However, it will only commit to the cargo loading improvements for a substantial reduction in the settlement amount, because it will have to hire additional staff to implement these measures (there are no immediate infrastructure costs associated, but it would be an estimated $200,000 per year for labor). Plastiques will want recognition that it is a critical player in the Bella Bay economy, employing 4% of Santa Carla’s residents, and this measure would further increase jobs.

Value of Environmentally Beneficial Projects 

Plastiques believes there’s a strong argument that Seas for All’s data does not meet evidentiary standards, and may not support a finding of violation in court. Further, Plastiques does not believe that Seas for All’s expert opinion could support a finding that it has violated its permit every single day for the past 5 years. Plastiques believes that the settlement amount should only be based on the May 25th discharge event that was publicized in Bella Bay Times, and only 3 events documented in the Water Agency’s inspection reports (7/1/2022; 7/23/2022; 9/3/2022). Accordingly, Plastiques is prepared to argue that the settlement amount should be based on a maximum of 4 violations events total, which would equate to a total maximum penalty of $180,000 for the solids discharges. Further, it doesn’t believe that the court would award maximum penalties. 

Plastiques understands that the significant May 25th event should have been reported, and that therefore, maximum reporting penalties would be based on 300 days’ failure to report, which equates to $3 million for reporting violations. However, Plastiques doesn’t think that the maximum amount would be awarded, and therefore doesn’t want to pay more than $2 million for reporting violations. 

In light of this, along with the fact that Plastiques anticipates agreeing to invest in some technical improvements at its facility, Plastiques believes that a settlement payment amount of $2,180,000 is very reasonable. However, Plastiques also understands that if they do not reach a settlement today and the case is litigated, there is a chance that the court could find that Seas For All’s citizen science does support the finding of additional violations (upwards of 30 days of violations, if not more). Additionally, Seas For All obtained the Water Agency’s inspection reports via a simple PRA request; Plastiques is concerned that if the case goes to trial, discovery could potentially uncover even more issues and potential violations. Moreover, Plastiques knows that if it proceeds to litigation, it will be a lengthy trial and attorneys’ fees and expert costs will be significant. Finally, a lawsuit would not be good for Plastiques from a public relations standpoint, particularly when it looks to expand operations in the future. Therefore, it has authorized spending up to $30 million total for the EBP payment, Seas For All’s attorneys’ fees and expert costs, along with the costs of any technical improvements it agrees to make (over the next year and a half). However, it strongly prefers spending less than $15 million total. 

Environmentally Beneficial Project(s) 

Plastiques understands from an initial phone call that Seas For All wants the EBPs to 

support STOP (Stopping Tyranny of Plastics), a 501(c)(4) nonprofit organization dedicated exclusively to eradicating single use plastic pollution. Plastiques is extremely reluctant to support STOP due to its name, and mission of eliminating single use plastics. The majority of STOP’s work is geared toward influencing plastics policies, and Plastiques is hesitant to provide money to an organization that is working to reduce Plastiques’ market (since much of its plastic is used to make single use goods) and negatively impact its bottom line. STOP also has a program encouraging and helping businesses implement Extended Producer Responsibility (EPR) takeback programs. Plastiques would be willing to have some of its payment go towards implementing an EPR program, for an additional significant reduction in the penalty payment, but prefers that most go toward a research study on plastics in the bay.

Additionally, in order for Plastiques to agree to funding a STOP EPR program in any amount, it will require Seas For All to agree that they will issue a joint press release, which cannot mention STOP in any fashion, but instead would reference Plastiques’ funding of an EPR program and a study on plastics in Bella Bay. 

Attorneys’ Fees and Expert Costs 

Plastiques believes that since it is coming to the table in good faith to negotiate, and has been willing to implement improvements to its facility and operations, it should not have to reimburse Seas For All for any of its attorneys’ fees or expert costs – particularly because the case hasn’t even yet gone to litigation. 

However, Plastiques has authorized spending up to $30 million total towards the EBP payment, costs for technical improvements (for the next year and a half), and Seas For All’s attorneys’ fees and expert costs. 

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 1 The Shore Commission is generally based on the California Coastal Commission, but is not bound by the Coastal Commission’s regulations or processes. Students should only rely on the facts provided in this fact pattern. 

2 The Shoreline Act is generally based on the California Coastal Act, but is not identical to the California Coastal Act. Students should only rely on the facts provided in this fact pattern.  

3 In determining the amount of liability for unpermitted development under the Shoreline Act, the following factors are considered: 

(1) The nature, circumstance, extent, and gravity of the violation. 
(2) Whether the violation is susceptible to restoration or other remedial measures. 
(3) The sensitivity of the resource affected by the violation. 
(4) The cost to the state of bringing the action. 
(5) With respect to the violator, any voluntary restoration or remedial measures undertaken, any prior history of violations, the degree of culpability, economic profits, if any, resulting from, or expected to result as a consequence of, the violation, and such other matters as justice may require.  

4 California’s Recreational Use Statute protects private landowners from liability for injuries suffered by people who enter their land free of charge for recreational purposes. Therefore, this should not be a concern for property owners like the Selvas in considering the public access issue.  

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Round 2

1 The Clean Water Act is generally based on the Federal Clean Water Act, but students should only rely on the facts provided in this fact pattern. 

2 The California Water Agency (a fictitious name and agency based loosely on the California Water Board) has authority for regulating and enforcing the Clean Water Act in California.  

3 A 60-day Notice of Intent to sue is required before citizen plaintiffs may file suit under the Clean Water Act. 

4 Penalty factors under the Clean Water Act include: 

• whether the violations are serious and cause harm 
• whether a permittee gains an economic benefit by failing to make system improvements sufficient to prevent violations 
• a permittee’s history of Clean Water Act violations 
• whether a permittee has made good faith efforts to comply with a long term problem economic impact on company