As set forth in the 2015 MTD Ruling, “a motion ‘must concisely state the … law supporting its motion’… and ‘requires the Commission to determine whether the party bringing the motion prevails solely on undisputed facts and matters of law.’”3 For a third time, Water Plus cannot establish entitlement to the relief it seeks because the Motion does not cite supporting law and does not establish the existence of undisputed facts and matters of law.
Regarding the accusations of data tampering, specificallyWater Plus’s assertions of “insufficient” and corrupted data and flawed analysis regarding the model used for the environmental review of the MPWSP, Administrative Law Judge Weatherford already ruled twice that these claims do not provide justification for dismissing California American Water’s application.4 In the instant Motion, Water Plus (again) does not establish its credentials to assess the hydrological analysis and (again) fails to provide a credible expert witness to defend its statements. The statements made byWater Plus simply are not undisputed facts or matters of law. Indeed, Water Plus fails to cite any law supporting dismissal of the application based on its specious allegations regarding corrupt data and flawed analysis by the Commission’s consultants.
Furthermore, it remains true that “[e]ven if the allegations made byWater Plus were both entirely correct and uncontroverted, those allegations only go to the sufficiency of the CEQA document, which the Commission can weigh when it decides whether or not to certify the EIR.”5 There is no basis for the Commission to dismiss the application outright based on Water Plus’s unfounded accusations.
Water Plus’s contentions regarding the validity of the Return Water Settlement and purported violations of the Agency Act also do not establish a basis for dismissing California American Water’s application. First, Water Plus again “fails to state the law supporting the ruling requested”6 on the return water and Agency Act issues. Second, Water Plus’s arguments are nothing more than an improper and untimely attack on the Return Water Settlement.7 Water Plus already filed its comments on the Return Water Settlement on June 28, 2016. The Joint Consolidated Reply Comments in Support of the Joint Motion for Approval of the Settlement Agreement on Desalination Plant Return Water, filed July 29, 2016 and incorporated herein by reference, explained that there is ample law to support use of return water to prevent export of water from the Salinas Groundwater Basin.8 Water Plus is not entitled to a new round of comments on the Return Water Settlement or a sur-reply under the guise of a motion to dismiss. Water Plus’s arguments, however unmeritorious, regarding the Return Water Settlement can be addressed in the context of proceedings on the Return Water Settlement. A motion to dismiss is not the proper vehicle for analyzing Water Plus’s defective return water theories.
The Commission has characterized the standard for granting a motion to dismiss as follows:
The question becomes whether the Commission and the parties would be squandering their resources by proceeding to an evidentiary hearing when the outcome is a foregone conclusion under the current law and policy of the Commission.9
Water Plus has repeatedly failed to demonstrate that the outcome it espouses is a “foregone” conclusion under the current law and policy of the Commission. Instead, Water Plus ignores its burden, fails to provide any legal justification for dismissing the current proceeding, and highlights several triable issues of fact.
Early in this proceeding, Administrative Law Judge Weatherford denied a motion to dismiss filed by Marina Coast Water District:
I deny the motion to dismiss because there is good cause for the Commission to proceed with an examination of the Monterey Peninsula Water Supply Project proposed in A.12-04-019. The people and entities in the Monterey Division service area of the Applicant face the risk of losing -- in less than five years -- most of the water supply that presently serves them….Given the overarching public interest in finding a source or sources of replacement water for the Monterey Peninsula as soon as practicable, it is reasonable to proceed with A.12-04-019.10
This reasoning is still applicable. California American Water urges the Commission to deny Water Plus’s Motion and proceed with its evaluation of the MPWSP.
Cal-Am Water Company's Response to the Third Water Plus Motion to Dismiss 6-15-17 by L. A. Paterson on Scribd
CALIFORNIA-AMERICAN WATER COMPANY’S RESPONSE TO THE THIRD WATER PLUS MOTION TO DISMISS THE PROCEEDING OF THE MONTEREY PENINSULA WATER SUPPLY PROJECT