Redevelopment Agency of City of Stockton v. BNSF

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REDEVELOPMENT AGENCY OF THE 
CITY OF STOCKTON,
Plaintiff-Appellee-Cross-Appellant, No. 09-16585
v.
 D.C. No.
2:05-cv-02087-
BNSF RAILWAY COMPANY; UNION
PACIFIC RAILROAD COMPANY, JAM-JFM
Defendants-Appellants-Cross-
Appellees.


REDEVELOPMENT AGENCY OF THE 
CITY OF STOCKTON,
Plaintiff-Appellee-Cross-Appellant, No. 09-16739
v.
 D.C. No.
2:05-cv-02087-
BNSF RAILWAY COMPANY; UNION
PACIFIC RAILROAD COMPANY, JAM-JFM
Defendants-Appellants-Cross-
Appellees.


REDEVELOPMENT AGENCY OF THE 
CITY OF STOCKTON,
No. 09-17640
Plaintiff-Appellee-Cross-Appellant,
D.C. No.
v.
 2:05-cv-02087-
BNSF RAILWAY COMPANY; UNION JAM-JFM
PACIFIC RAILROAD COMPANY,
OPINION
Defendants-Appellants-Cross-
Appellees.


8733
8734 REDEVELOPMENT AGENCY v. BNSF RAILWAY
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding

Argued and Submitted
February 14, 2011—San Francisco, California

Filed June 28, 2011

Before: M. Margaret McKeown* and Richard C. Tallman,
Circuit Judges, and Arthur J. Tarnow,**
Senior District Judge.

Opinion by Judge Tallman

*Due to the death of the Honorable David R. Thompson, the Honorable
M. Margaret McKeown, United States Circuit Judge for the Ninth Circuit,
was drawn to replace him. Judge McKeown has read the briefs, reviewed
the record, and listened to the audio recording of oral argument held on
February 14, 2011.
**The Honorable Arthur J. Tarnow, Senior United States District Judge
for the Eastern District of Michigan, sitting by designation.
8738 REDEVELOPMENT AGENCY v. BNSF RAILWAY
COUNSEL

Morgan Gilhuly (argued), John F. Barg, Donald Sobelman,
Barg Coffin Lewis & Trapp, LLP, San Francisco, California,
for defendants-appellants-cross-appellees BNSF Railway
Company and Union Pacific Railroad Company.

William D. Brown (argued), Scott E. Patterson, Christine J.
Gracco, Brown & Winters, Cardiff-by-the-Sea, California, for
plaintiff-appellee-cross-appellant Redevelopment Agency of
the City of Stockton.

Kevin M. Fong, Margaret Rosegay, Pilsbury Winthrop Shaw
Pittman LLP, San Francisco, California, for amicus curiae
California Council for Environmental and Economic Balance.

Benjamin G. Shatz, Fred L. Main, Manatt, Phelps & Phillips,
LLP, Los Angeles, California, for amicus curiae California
Chamber of Commerce.

OPINION

TALLMAN, Circuit Judge:

Appellants BNSF Railway Company and Union Pacific
Railroad Company (“the Railroads”) formerly maintained
railroad tracks on a parcel of land in Stockton, California, that
was contaminated by petroleum. The petroleum was spilled at
a nearby industrial site and migrated onto the property via an
underground french drain the Railroads had installed in order
to remove water from the roadbed. We consider whether the
Railroads are liable for the contamination of the property
under the law of nuisance or under California’s Polanco
Redevelopment Act (“Polanco Act”), Cal. Health & Safety
Code § 33459 et. seq. We hold that they are not.
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8739
There is no evidence that the Railroads actively or know-
ingly caused or permitted the contamination as required for
nuisance liability and liability under the Polanco Act’s Water
Code provision. Nor were the Railroads “owners” of the prop-
erty under the Polanco Act’s CERCLA provision when the
contamination occurred. Because the record establishes no
genuine issue of material fact as to the Railroads’ liability, the
Railroads are entitled to summary judgment. Therefore, we
need not reach any of the damages issues on appeal or cross-
appeal.

I

In 1968, in order to make room for the construction of a
freeway interchange between Interstate 5 and State Highway
4 in Stockton, California, the State of California entered into
a contract (“the Agreement”) with several railroad companies,
predecessors-in-interest to the Railroads, to relocate existing
railroad track from the proposed interchange site to a nearby
State-owned parcel (“the Property”). Under the Agreement,
the Railroads planned and approved grading and drainage
improvements to the Property made by the State, including
the installation of a “french drain” underneath the new road-
bed. The french drain, a buried perforated pipe, was designed
to improve soil stability by facilitating drainage. After these
improvements were completed, the Railroads laid track on the
Property. The Railroads agreed to maintain the track, roadbed
and drainage, and the State agreed to convey to the Railroads
all rights-of-way necessary for track operation. Although the
Railroads began running trains over the track in 1970, the
State did not actually transfer the deed to the underlying land
to the Railroads until 1983.

In 1988, the Railroads sold their interest in the Property to
Appellee, the Redevelopment Agency of the City of Stockton
(“the Agency”), which planned to develop the site. In 2004,
the Agency sold a portion of the Property known as “Area 3”
to a commercial developer (while retaining those portions
8740 REDEVELOPMENT AGENCY v. BNSF RAILWAY
known as “Area 4” and “Area 24”) and indemnified the devel-
oper for costs incurred due to any then-existing contamination
discovered on the site. When site excavation began in prepa-
ration for development, petroleum contamination was found
in the soil along the path of the french drain and in the
groundwater. Testing indicated that the contamination was at
least twenty years old, and its likely source was determined
to be the nearby L&M bulk petroleum facility (“the L&M
Site”) where there had been several spills in the early 1970s,
including a spill of up to 6,000 gallons of diesel fuel in 1974.
It is undisputed that the french drain served as a preferential
pathway through which the petroleum contamination migrated
underground onto the Property.

After the contamination was discovered in July 2004, the
developer and the Agency began to work with environmental
consultants and regulators to develop a remediation workplan
for Area 3. The Agency sent notices to the Railroads request-
ing that they prepare remedial action plans for Areas 3, 4, and
24, but the Railroads did not respond to any of them. In the
fall of 2004, a trench approximately 300 feet long, 18 to 20
feet deep, and 15 to 20 feet wide was excavated on Area 3 to
remove contaminated soil. The Agency incurred costs of over
$1.3 million for this work, plus additional costs of nearly one-
half million dollars for investigation and remediation work on
Areas 4 and 24 between 2005 and 2008.

On September 29, 2005, the Agency sued the Railroads in
California Superior Court, seeking cost recovery and an
injunction requiring the Railroads to remediate any remaining
contamination at the Property. The Agency alleged that the
Railroads were liable for the contamination under the Polanco
Redevelopment Act as well as the common law of nuisance.
The Railroads removed the action to the United States District
Court for the Eastern District of California under diversity
jurisdiction. The Railroads and the Agency filed cross-
motions for summary judgment. On June 19, 2007, the district
court ruled that the Railroads were liable for the contamina-
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8741
tion under the law of nuisance and under the Polanco Act’s
Water Code provision,1 but not under the Polanco Act’s CER-
CLA provision. See Cal. Health & Safety Code § 33459(h).
The Agency was awarded over eight hundred thousand dollars
in damages and an injunction. The parties appeal and cross-
appeal as to the findings of liability and the damages award.

II

We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a district court’s ruling on cross-motions for sum-
mary judgment. Trunk v. City of San Diego, 629 F.3d 1099,
1105 (9th Cir. 2011). We view the evidence in the light most
favorable to the nonmoving party and determine “whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Id. (citation omitted). When the district court disposes of a
case on cross-motions for summary judgment, we may review
both the grant of the prevailing party’s motion and the corre-
sponding denial of the opponent’s motion. Id.; see Jones-
Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d
688, 694 n.2 (9th Cir. 1992).

III

California law defines a nuisance, in part, as “[a]nything
which is injurious to health . . . or is indecent or offensive to
the senses, or an obstruction to the free use of property, so as
to interfere with the comfortable enjoyment of life or property
. . . .” Cal. Civ. Code § 3479. To qualify as a nuisance “the
interference must be both substantial and unreasonable.”
People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1105 (1997)
(emphasis in original); see also San Diego Gas & Elec. Co.
v. Superior Court, 13 Cal. 4th 893, 938-39 (1996). It is undis-
1
The district court held that the Railroads were liable under the Polanco
Act only for Areas 4 and 24, but not Area 3, because the Agency had
failed to comply with the Act’s notice provisions as to Area 3.
8742 REDEVELOPMENT AGENCY v. BNSF RAILWAY
puted that the soil and groundwater contamination in this case
constitutes a nuisance. See California v. Campbell, 138 F.3d
772, 776 (9th Cir. 1998) (citing Carter v. Chotiner, 210 Cal.
288, 291 (1930)); Selma Pressure Treating Co. v. Osmose
Wood Preserving Co. of Am., 221 Cal. App. 3d 1601, 1619
(1990). The question is whether the Railroads are liable for it.

At the outset, we clarify how the concept of “unreasonable-
ness” plays into nuisance liability. The Railroads invoke Lus-
sier v. San Lorenzo Valley Water District, 206 Cal. App. 3d
92 (1988), for the proposition that nuisance liability requires
an unreasonable act. See id. at 101 (noting that nuisance lia-
bility can arise “only for such interferences as are intentional
and unreasonable or result from negligent, reckless or abnor-
mally dangerous conduct” (internal quotation marks and cita-
tion omitted)). However, this proposition confuses the
concept of an unreasonable interference, which is required for
nuisance liability, with an unreasonable or negligent act,
which is not. An intentional but not unreasonable act can give
rise to nuisance liability if it creates an unreasonable interfer-
ence. See id. at 105-06; Shields v. Wondries, 154 Cal. App. 2d
249, 255 (1957) (noting that a private nuisance may result
from “skillfully directed efforts,” such as the non-negligent
construction of improvements on one’s property, which none-
theless infringe upon a neighbor’s property rights).

If the Railroads created or assisted in the creation of the
nuisance on the Property by installing and maintaining the
french drain, they are liable, regardless of whether the instal-
lation and maintenance of the french drain was conducted in
a reasonable manner or not. If the Railroads did not create or
assist in the creation of the nuisance, they can only be held
liable if they acted unreasonably as possessors of the Property
in failing to discover and abate the nuisance. See Lussier, 206
Cal. App. 3d at 104-05 (noting the general view that “proof
of negligence may be essential to a claim of nuisance where
the alleged nuisance involves a failure to act”). We consider
first whether the Railroads created the nuisance by installing
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8743
the french drain; and second whether they unreasonably failed
to discover and abate it.

A

[1] Nuisance liability does not necessarily “hinge on
whether the defendant owns, possesses or controls the prop-
erty, nor on whether he is in a position to abate the nuisance;
the critical question is whether the defendant created or
assisted in the creation of the nuisance.” Cnty. of Santa Clara
v. Atl. Richfield Co., 137 Cal. App. 4th 292, 306 (2006)
(emphasis in original) (internal quotation marks and citations
omitted). The district court concluded that the Railroads “cre-
ated or assisted in the creation” of the nuisance because they
were a but-for cause of the contamination of the Property: the
contamination would not have migrated onto the Property but
for the existence of the french drain, and the french drain
would not have been installed but for the Railroads.

[2] We cannot agree that such passive but-for causation is
sufficient for nuisance liability to attach. Under California
law, conduct cannot be said to “create” a nuisance unless it
more actively or knowingly generates or permits the specific
nuisance condition. For example, in Selma Pressure Treating
Co., the California Court of Appeal held that a company’s
“direct involvement in the design and installation of unsafe
disposal systems” for chemicals used in a wood treatment
process, “coupled with its claimed knowledge of the dangers
involved in such practices, clearly could support liability
based upon a finding that it created or assisted in the creation
of a public nuisance.” 221 Cal. App. 3d at 1620.

However, in City of Modesto Redevelopment Agency v.
Superior Court, 119 Cal. App. 4th 28 (2004), the Court of
Appeal declined to extend Selma to hold that “those who
merely placed [hazardous substances] in the stream of com-
merce,” as opposed to those who “took affirmative steps
directed toward the improper discharge of [hazardous]
8744 REDEVELOPMENT AGENCY v. BNSF RAILWAY
wastes,” could be liable for nuisance. Id. at 43; see also Atl.
Richfield, 137 Cal. App. 4th at 310 (holding that lead paint
manufacturers could incur nuisance liability for their “inten-
tional promotion of the use of lead paint on the interiors of
buildings with knowledge of the public health hazard that this
would create,” but not for their “mere manufacture and distri-
bution of lead paint or their failure to warn of its hazards”).2

Federal cases interpreting California nuisance law reflect
this same understanding. See Campbell, 138 F.3d at 775
(defendant manufacturers created a nuisance at a property
where they disposed of hazardous waste by dumping it on the
ground); W. Coast Home Builders, Inc. v. Aventis Crop-
science USA Inc., 2009 WL 2612380 at *9 (N.D. Cal. 2009)
(defendant waste generators not liable for groundwater con-
tamination at a landfill where their waste was disposed
because their conduct was “too attenuated from the creation
of the alleged nuisance,” even though it was a but-for cause
of the contamination).

[3] In short, we find no precedent suggesting that but-for
causation suffices for nuisance liability, and we will not adopt
such an expansive interpretation of California law here.
Because the Railroads’ conduct with regard to the specific
nuisance condition—the contamination—was not active, affir-
mative, or knowing, the Railroads simply did not “create or
assist in the creation” of the nuisance on the Property. They
did not spill the petroleum or otherwise release it into the
environment. They did not affirmatively direct its flow or
2
As the Agency points out, the holdings in Modesto and Atlantic Rich-
field are explained in part by the courts’ recognition that manufacturing
and distribution activity may be better addressed through the law of prod-
ucts liability. See Atl. Richfield, 137 Cal. App. 4th at 308-09. But these
cases are also explained by the courts’ recognition that nuisance liability
requires more than a passive or attenuated causal connection to contamina-
tion. See id. at 309-10 (“A public nuisance cause of action is not premised
on a defect in a product or a failure to warn but on affirmative conduct that
assisted in the creation of a hazardous condition.”).
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8745
knowingly permit it to migrate into the french drain and onto
the Property. While the Railroads may have acted affirma-
tively with regard to the installation of the french drain, that
conduct was wholly unrelated to the contamination. The Rail-
roads did not, for example, install the french drain as part of
a system designed to move or dispose of hazardous waste,
like the defendants did in Selma. See 221 Cal. App. 3d at
1620. The drainage improvements on the site were designed
to move water, not contaminants.

[4] We decline to hold that an otherwise innocent party
who builds or installs a conduit or structure for an unrelated
purpose which happens to affect the distribution of contami-
nation released by someone else is nonetheless liable for “cre-
ating or assisting in the creation” of a nuisance. Such a result
defies semantics, the law, and common sense. “While liability
for nuisance is broad . . . , it is not unlimited.” Modesto, 119
Cal. App. 4th at 39. We decline to extend it here. The Rail-
roads are not liable for creating a nuisance by virtue of their
installation of the french drain.

B

[5] We must also examine whether the Railroads are liable
for nuisance as the possessors of the Property when the con-
tamination occurred. Possessors of land can be liable for a
nuisance on that land even when they did not create the nui-
sance. See Leslie Salt Co. v. San Francisco Bay Conservation
and Dev. Comm’n, 153 Cal. App. 3d 605, 619-20 (1984) (not-
ing that, under principles of nuisance, an occupier of land
could be liable for fill dumped into a wetland by someone else
without the occupier’s knowledge). In such a situation, liabil-
ity flows not from the possessor’s “active responsibility for a
condition of his land that causes widespread harm . . . but
rather, and quite simply, from his very possession and control
of the land in question.” Id. at 622; see also Restatement (Sec-
ond) of Torts § 839 cmt. d (1979). California nuisance law
conforms to the Restatement, see City of Los Angeles v. San
8746 REDEVELOPMENT AGENCY v. BNSF RAILWAY
Pedro Boat Works, 635 F.3d 440, 452 (9th Cir. 2011), and
under the Restatement,

[a] possessor of land is subject to liability for a nui-
sance caused while he is in possession by an abat-
able artificial condition on the land, if the nuisance
is otherwise actionable, and

(a) the possessor knows or should know of the con-
dition and the nuisance or unreasonable risk of nui-
sance involved, and

(b) he knows or should know that it exists without
the consent of those affected by it, and

(c) he has failed after a reasonable opportunity to
take reasonable steps to abate the condition or to
protect the affected persons against it.

Restatement (Second) of Torts § 839 (1979).

We assume, without deciding, that the soil and groundwater
contamination on the Property is considered “abatable” under
California law. See Capogeannis v. Superior Court, 12 Cal.
App. 4th 668, 682-83 (1993) (holding that soil and groundwa-
ter contamination can be considered abatable); but see
Mangini v. Aerojet-Gen. Corp., 12 Cal. 4th 1087, 1099-1100
(1996) (noting that “ ‘abatable’ means reasonably abatable”
given considerations of cost and practicality); Restatement
(Second) of Torts § 839 cmt. f (1979). We focus instead on
whether the Railroads knew or should have known of the con-
tamination.

[6] No evidence has been adduced that the Railroads had
actual knowledge of the contamination while they were in
possession of the Property. Whether the Railroads “should
have known” about the contamination depends on whether
they had a duty to inspect for it and whether it was discover-
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8747
able by a reasonable inspection. See Leslie Salt, 153 Cal. App.
3d at 621; Restatement (Second) of Torts § 839 cmt. i (1979).
The Agency does not allege that the contamination should
have been apparent to the Railroads based on their periodic
visual inspections of the Property. This is not a case in which,
for example, the nuisance was in any way manifest on the sur-
face of the land. Cf. Leslie Salt, 153 Cal. App. 3d at 621
(holding that landowner “certainly” should have known of
“the existence of several hundred tons of detritus and other fill
materials on its land”). Indeed, the contamination was not dis-
covered by any subsequent owner or possessor of the land,
including the Agency itself, until excavation began at the
Property some sixteen years after the Railroads sold it.

[7] The Agency nonetheless implies that the Railroads had
a duty to inspect the subsurface for contamination, because:
(1) the Property was near the L&M Site, a potential source of
hazardous waste; and (2) the Railroads were obligated by the
Agreement to maintain the railroad tracks and drainage. Nei-
ther of these conditions is sufficient to establish such a duty.
As to the first, it is untenable that a possessor of land, simply
because his neighbor is a potential polluter, thereby becomes
responsible for investigating the subsurface in order to dis-
cover and control his neighbor’s pollution. Such a holding
shifts too much of the cost of pollution control away from the
parties who actually have the ability to affect whether a haz-
ardous substance is released into the environment in the first
place, and onto the innocent parties who have the misfortune
of being “downstream.”

[8] The law reasonably imposes a duty on a possessor of
land to ensure that activities on that land—where the posses-
sor has control—do not produce a nuisance. See Leslie Salt,
153 Cal. App. 3d at 620-22; Restatement (Second) of Torts
§ 838 (1979). This is not the same as a duty to ensure that
activities on adjacent land—where the possessor has no
control—do not produce a nuisance. It is this latter duty that
the Agency essentially asks us to impose on the Railroads,
8748 REDEVELOPMENT AGENCY v. BNSF RAILWAY
and we decline to do so. The law of nuisance evolved to pro-
tect a person from his neighbor’s activities, not to render him
liable for them. See Lussier, 206 Cal. App. 3d at 100 (“The
basic concept underlying the law of nuisances is articulated in
the ancient maxim sic utere tuo ut alienum non laedas, that
is, so use your own as not to injure another’s property.” (cita-
tions omitted)).

[9] Whether the Railroads had a duty to inspect the subsur-
face for contamination of the Property based on their respon-
sibility under the Agreement to “maintain” the track and
drainage is a closer question. We recently suggested in dicta
that a possessor of land who was contractually obligated to
“ ‘keep and maintain [the] premises in a safe, clean, whole-
some, sanitary and sightly condition’ ” might have a height-
ened duty to investigate for contamination. San Pedro Boat
Works, 635 F.3d at 453. However, even assuming that this
dicta should be applied as a rule of law, the Agreement simply
cannot be construed to impose any comparable obligation on
the Railroads. Unlike the contractual language in San Pedro
Boat Works, the relevant language in the Agreement, which
indicates that “the maintenance of all railroad facilities includ-
ing track, roadbed, [and] railroad drainage . . . shall be by
[the] Railroads at their expense,” in no way implies any par-
ticular obligation to keep the Property pollution-free. Rather,
this language merely imposes a duty to maintain certain struc-
tures on the Property. There is no indication that the Railroads
did not fulfill this responsibility with regard to the drainage:
as the Railroads point out, the drainage functioned exactly as
it was supposed to by channeling and dispersing water under
the site. Nothing in the Agreement remotely suggests that the
“maintenance” of the railroad facilities involved a duty to
conduct a proactive subsurface investigation for contamina-
tion.

[10] Because there is no basis on which to conclude that
the Railroads knew or should have known of the contamina-
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8749
tion, they cannot be liable for nuisance by virtue of their sta-
tus as possessors of the Property.

IV

[11] In addition to its claim of nuisance, the Agency also
claims that the Railroads are liable under California’s Polanco
Act, Cal. Health & Safety Code § 33459 et. seq. Under the
Polanco Act, a local redevelopment agency can recover the
costs it incurs for contamination remediation within a redevel-
opment project area from any “responsible party.” Id.
§ 33459.4(a); Modesto, 119 Cal. App. 4th at 34. The Polanco
Act defines a “responsible party” as any person described in
either: (1) California Health and Safety Code section 25323.5
(which, in turn, refers to persons described in the federal
Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA) at 42 U.S.C. § 9607(a)); or (2) Cali-
fornia Water Code section 13304(a). Cal. Health & Safety
Code § 33459(h). We now assess the Railroads’ Polanco Act
liability under both the Water Code provision and the CER-
CLA provision.

A

The Polanco Act imposes liability on parties described in
section 13304(a) of the California Water Code, which in turn
refers to

[a]ny person . . . who has caused or permitted, causes
or permits, or threatens to cause or permit any waste
to be discharged or deposited where it is, or proba-
bly will be, discharged into the waters of the state
and creates, or threatens to create, a condition of pol-
lution or nuisance . . . .

Cal. Water Code § 13304(a). The district court held that the
Railroads were liable under section 13304 because the chan-
neling and emission of petroleum by the french drain was a
8750 REDEVELOPMENT AGENCY v. BNSF RAILWAY
discharge, and the Railroads were responsible for the design,
installation and maintenance of the french drain. We disagree.

First of all, we take issue with the characterization of the
emission of the contamination from the french drain as the
relevant “discharge,” when the french drain merely acted as
a conduit for the waste that had been initially released into the
environment at the L&M Site. Cf. Lake Madrone Water Dist.
v. State Water Res. Control Bd., 209 Cal. App. 3d 163, 169
(1989) (noting that a dam that collected and discharged silt
was “not a mere conduit through which a [hazardous sub-
stance] passes”). It is undisputed that the Railroads did not in
any way cause or permit the initial discharge of petroleum at
the L&M Site. But even if the emission of contamination
from the french drain is the appropriate “discharge” to con-
sider, the Railroads are not liable.

[12] As the district court recognized, section 13304 should
be construed harmoniously with the law of nuisance. See
Modesto, 119 Cal. App. 4th at 37-38. However, because the
district court construed nuisance liability too broadly its sec-
tion 13304 liability analysis reflects the same error. Just as
but-for causation is insufficient to impose liability for a nui-
sance, it is insufficient to impose liability for a discharge
under section 13304. The California Court of Appeal has con-
cluded that the words “causes or permits” within section
13304 were not intended “to encompass those whose involve-
ment with a spill was remote and passive.” Modesto, 119 Cal.
App. at 44; see also id. at 43 (“[T]hose who took affirmative
steps directed toward the improper discharge of [hazardous]
wastes . . . may be liable under [section 13304]. . . .”). The
Railroads’ involvement with the petroleum spill was not only
remote, it was nonexistent; and their involvement with the
emission of contamination from the french drain was entirely
passive and unknowing. As explained in our nuisance analy-
sis, the Railroads engaged in no active, affirmative or know-
ing conduct with regard to the passage of contamination
through the french drain and into the soil. Therefore, the Rail-
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8751
roads did not “cause or permit” the discharge under section
13304, and they are not liable under the Water Code provision
of the Polanco Act.

B

[13] The Polanco Act also imposes liability on persons
described in CERCLA at 42 U.S.C. § 9607(a). Cal. Health &
Safety Code § 33459(h). As relevant to this case, CERCLA
refers to “any person who at the time of disposal of any haz-
ardous substance owned or operated any facility at which
such hazardous substances were disposed of.” 42 U.S.C.
§ 9607(a)(2). The district court held that the Railroads were
not liable under the Polanco Act’s CERCLA provision
because they were not “owners” or “operators” within the
meaning of CERCLA. The Agency has appealed only the dis-
trict court’s ruling that the Railroads were not “owners” of the
Property. We agree with the district court on this issue.3

It is undisputed that the Agency did not deed the Property
to the Railroads until 1983, well after the petroleum release
occurred in the 1970s. However, the Agency asserts that the
Railroads were nonetheless “owners” of the Property within
the meaning of CERCLA when the petroleum release
occurred because: (1) the doctrine of equitable conversion
rendered them equitable owners of the Property upon the exe-
3
We note that, prior to reaching the ownership issue, the district court
determined that the migration of petroleum contamination onto the Prop-
erty through the french drain constituted a “disposal” within the meaning
of CERCLA at 42 U.S.C. § 9607(a)(2). We are skeptical of this aspect of
the district court’s ruling. See Carson Harbor Vill., Ltd. v. Unocal Corp.,
270 F.3d 863, 879 (9th Cir. 2001) (en banc) (holding that “the gradual pas-
sive migration of contamination through the soil” was not a “disposal”
under CERCLA). However, because the “disposal” issue was not con-
tested by the parties, and because we can affirm the district court’s holding
that the Railroads were not liable under the Polanco Act’s CERCLA pro-
vision based on its finding that the Railroads were not “owners” of the
Property, we decline to rule on the “disposal” issue.
8752 REDEVELOPMENT AGENCY v. BNSF RAILWAY
cution of the Agreement in 1968; or (2) they held an easement
or license to operate trains over the Property pursuant to the
Agreement. Both arguments fail.

1

The doctrine of equitable conversion generally provides
that when a valid executory land sales contract is entered into,
the purchaser becomes the equitable owner of the land. See
Parr-Richmond Indus. Corp. v. Boyd, 43 Cal. 2d 157, 166
(1954) (“An unconditional contract for the sale of land, of
which specific performance would be decreed, grants the pur-
chaser equitable title, and equity considers him the owner.”);
Alhambra Redevelopment Agency v. Transamerica Fin.
Servs., 212 Cal. App. 3d 1370, 1376 (1989) (“By the execu-
tion of a valid enforceable contract to sell real estate the ven-
dee becomes the equitable owner of the title . . . .” (internal
quotation marks and citation omitted)). We must therefore
inquire whether the Agreement functioned as a valid land
sales contract. An essential requirement for a valid land sales
contract is that it contain a description of the land to be con-
veyed. See Corona Unified Sch. Dist. of Riverside Cnty. v.
Vejar, 165 Cal. App. 2d 561, 564-66 (1958). That description
must be sufficient to delineate the property on the ground
without resort to parol evidence. Id. at 566.

[14] The Agreement provided that the State would convey
to the Railroads “all rights of way necessary for the construc-
tion and operation of substitute trackage . . . and for the con-
struction and operation of all other railroad facilities required
to be relocated or reestablished due to construction and relo-
cation work herein contemplated.” However, nowhere did the
Agreement describe how wide or extensive these rights-of-
way would be. Although a map was incorporated into the
Agreement as “Exhibit A,” that map, by its terms, depicted
the location of the “trackage,” not the extent of the associated
rights-of-way. Furthermore, there is no indication from the
Agreement that the State intended to convey a fee simple
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8753
interest to the Railroads. After all, a “right-of-way” is com-
monly defined as a lesser property interest. See Black’s Law
Dictionary 1440 (9th ed. 2009) (defining a “right-of-way” as
“[t]he right to build and operate a railway line or a highway
on land belonging to another, or the land so used”) (emphasis
added).

[15] The Agreement simply did not describe the extent of
the property to be transferred from the State to the Railroads
sufficiently to be considered a valid land sales contract. See
Corona Unified, 165 Cal. App. 2d at 566 (noting that “ ‘a
strip of land in front of Golden Rule Store and Stent Market’ ”
was an insufficient description of land because “nothing [was]
contained as to the width or length of the strip” (citation omit-
ted)). Therefore, the Agreement’s execution did not establish
the Railroads as equitable owners of the Property, and the
Railroads are not CERCLA “owners” under this theory.

2

[16] The Agency also theorizes that the Railroads were
“owners” of the Property for purposes of CERCLA because
their construction and use of the track on the Property, as
licensed by the Agreement, gave them an easement. See
Noronha v. Stewart, 199 Cal. App. 3d 485, 490 (1988)
(“[W]here a party has made substantial expenditures in reli-
ance on a license, the license acts, for all purposes, as an ease-
ment, estopping the grantor and his successor from revoking
it.”). However, even assuming the Railroads held an easement
over the Property, the argument that their status as an ease-
ment holder is enough to render them “owners” under CER-
CLA is squarely foreclosed by our precedent. “Having an
easement does not make one an ‘owner’ for purposes of CER-
CLA liability.” Long Beach Unified Sch. Dist. v. Godwin Cal.
Living Trust, 32 F.3d 1364, 1370 (9th Cir. 1994); see also id.
at 1368 (“[W]e read [CERCLA] as incorporating the common
law definition of its terms . . . . The common law does not
regard an easement holder as the owner of the property bur-
8754 REDEVELOPMENT AGENCY v. BNSF RAILWAY
dened by it.”); San Pedro Boat Works, 635 F.3d at 451 (“In
establishing ‘owner’ liability [under CERCLA], Congress did
not say ‘de facto owner,’ or ‘possessor,’ or ‘person with some
incidents or attributes of ownership,’ as it has in other legisla-
tion. . . . Instead it used the unmodified term ‘owner’ which
. . . when used alone, imports an absolute owner.” (some
internal quotation marks and citations omitted)).

In Long Beach we held that a holder of an easement for a
non-polluting pipeline was not liable as an “owner” under
CERCLA. 32 F.3d at 1368-69. The Agency points out, cor-
rectly, that Long Beach does not preclude imposing CERCLA
liability on an easement holder when the contamination
results from the use of the easement. See id. at 1367. But that
is simply because, in such circumstances, the easement holder
could be liable as an operator under CERCLA. Id. (“[W]hen
a party uses the easement to operate a pipeline that releases
hazardous materials, it is liable as an operator provided the
other statutory elements [of CERCLA] are satisfied.”). Cer-
tainly, if the Railroads’ use of their right-of-way resulted in
a contaminant release, the Railroads could be liable as “opera-
tors.” But that is not what happened here. The petroleum spill
was entirely unrelated to the Railroads’ use of the easement,
and the french drain was not installed or operated for any pur-
pose related to the petroleum contamination.

The district court correctly held (and the Agency does not
contest on appeal) that the Railroads were not “operators”
under CERCLA because they did not “manage, direct, or con-
duct operations specifically related to [the] pollution, that is,
operations having to do with the leakage or disposal of [the]
hazardous waste.” United States v. Bestfoods, 524 U.S. 51,
66-67 (1998). And there is absolutely nothing in our opinion
in Long Beach that suggests that, if the Railroads are not lia-
ble as “operators,” they can nonetheless be liable as “owners”
based solely on their status as easement holders. See 32 F.3d
at 1368-69 (“[W]e see no basis for holding that easement
holders are owners for purposes of CERCLA liability.”).
 REDEVELOPMENT AGENCY v. BNSF RAILWAY 8755
[17] In San Pedro Boat Works, we recently explained that
“the CERCLA framework holds liable both the passive title
owner of real property who acquiesces in another’s discharge
of harmful pollutants on his real property . . . (‘owner liabil-
ity’), and the active (or negligent) operator of the facility who
holds only a possessory interest in the real property but is in
fact responsible for the discharge (‘operator liability’).” 635
F.3d at 451-52 (emphasis in original). The Railroads do not
fall within either of these two categories: they did not hold
title to the Property at the time of the contamination, and they
are not in fact responsible for the discharge because they did
not conduct operations related to the petroleum. Since the
Railroads are not “owners” or “operators” under CERLCA,
42 U.S.C. § 9607(a)(2), they are not liable under the Polanco
Act’s CERCLA provision.

V

The Railroads are not liable for the contamination at the
Property under the common law of nuisance or under Califor-
nia’s Polanco Redevelopment Act. Therefore, we need not
reach the damages issues raised on appeal and cross-appeal.
We reverse the grant of summary judgment for the Agency on
the nuisance and Polanco Act-Water Code provision issues
and remand for entry of summary judgment for the Appel-
lants. We affirm the grant of summary judgment to the Appel-
lants on the Polanco Act-CERCLA provision issue.

Costs are awarded to the Appellants.

AFFIRMED in part; REVERSED AND REMANDED
in part.