‘Let Science Be the Guide’ at Trial Over AT&T’s Lake Tahoe Lead Cables: Plaintiff Report

The plaintiff California Sportfishing Protection Alliance and defendant AT&T agree on a September 2024 bench trial date in their dispute over the fate of lead-clad telecom cables at the bottom of Lake Tahoe, and they estimate a trial would take four to five days, said the alliance’s statement Thursday (docket 2:21-cv-00073) in U.S. District Court for Eastern California in Sacramento in preparation for an Aug. 24 status conference.

The alliance sued AT&T in January 2021 to enjoin the company from continuing to release lead into the waters of Lake Tahoe (see 2307200027). AT&T said in its own status conference statement Thursday that it stands by its assertions that the cables at the bottom of Lake Tahoe pose no hazards to human health or the environment.

On the "substance" of the trial, “the parties agree that the goal is to make a sound presentation of the scientific evidence” to the court, and to "let science be the guide," said the alliance's statement. “This is significant” because it gives the parties a “GuideStar” to work together “cooperatively” through the discovery process, “including perhaps having divers for both parties present together for the collection of samples” of the lead-clad cables in Lake Tahoe, it said.

The agreement to work cooperatively through discovery “also applies to testing procedures,” said the alliance. With an agreement about how testing should be done, the court “can be provided evidence based upon results, without having quarrels about how the samples were taken, or how tests were done,” it said.

A focus for both parties will be to have all information about sampling, testing or any written communication about the cables in Lake Tahoe "to be put on the table," said the alliance. That way, “all existing science, and the assessments of the cable situation prior to and during this litigation, are available for all to see, assess and comment upon,” it said.

Since some of the evidence collection, sampling and testing has been done by third parties, AT&T “has already sent out numerous third-party subpoenas,” said the alliance's statement. There’s “some disagreement” about the scope of the third-party subpoenas,” it said. “All documentation regarding sampling and testing within Lake Tahoe, either before or after the commencement of the litigation, is discoverable,” it said. Procedures can be worked out “so that any future sampling and testing can be made available to both parties,” it said.

The alliance worries AT&T is pursuing sampling and testing of cables throughout the U.S., said the alliance's statement. “This creates an unnecessary burden on the litigants of this Lake Tahoe case,” it said. AT&T’s diversions won’t provide “relevant information to the crux of the issue in the case which is the science regarding the cables in Lake Tahoe, not the science for cables outside of Lake Tahoe,” it said.

AT&T didn't address those worries in its own status conference statement Thursday. The company contends the “core issues” presented in this action include whether the plaintiff alliance can establish that the cables “present an imminent and substantial endangerment to health or the environment” within the meaning of the Resource Conservation and Recovery Act, said its statement.

Assuming the alliance can meet its initial burden, the issue then becomes whether the cables “are releasing a significant amount of lead into the environment," said the statement. AT&T stands by its contention that its cables pose no threat to human health or the environment, it said.

AT&T “seeks an expeditious resolution of the alleged claims,” said the statement. It suggests the court direct counsel “to confer on ways to streamline this action, including a potential bifurcation of issues,” it said. No motions are pending at this time, it said. AT&T will evaluate later whether it’s “appropriate to seek summary judgment on some or all claims,” it said.