Duarte Nursery, Inc. v. U.S. Army Corps of Eng'rs

• Decision Date: 10 June 2016
• Docket Number: No. 2:13-cv-02095-KJM-AC,2:13-cv-02095-KJM-AC
• Court: U.S. District Court — Eastern District of California
• Parties: DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE, an individual, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant. AND RELATED COUNTERCLAIMS

DUARTE NURSERY, INC., a California Corporation; and JOHN DUARTE,an individual, Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant.AND RELATED COUNTERCLAIMS

No. 2:13-cv-02095-KJM-AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

June 10, 2016

ORDER

This matter is before the court on cross-motions for summary judgment brought by plaintiff Duarte Nursery, Inc. (the Nursery), plaintiff John Duarte, and defendant United States Army Corps of Engineers (the Army Corps) and counterclaim-plaintiff United States of America (collectively, "the United States"). ECF Nos. 128, 136, 138, 139. The United States also moves to dismiss or in the alternative for summary judgment on plaintiffs' retaliatory prosecution claim. ECF No. 134. The court received oppositions and replies, ECF Nos. 152-161, and held a hearing on November 20, 2015 on the cross-motions. Anthony Francois, David Ivester, Gerald Brunn, and Peter Prows appeared for the Nursery and Duarte. Andrew Doyle, Gregory Broderick, and Samara Spence appeared for the United States.

For reasons explained below, the court GRANTS the United States' motions for summary judgment on plaintiffs' Due Process claims and the United States' Clean Water Act (CWA) counterclaim. The court GRANTS the United States' motion to dismiss plaintiffs' retaliatory prosecution claim WITHOUT LEAVE TO AMEND.

I. PROCEDURAL HISTORY

The operative Second Amended Complaint (SAC) alleges that the Army Corps violated plaintiffs' Fifth Amendment right to due process and First Amendment right against retaliatory prosecution. See generally ECF No. 90. The United States' Counterclaim against plaintiffs alleges violation of § 301(a) of the CWA, 33 U.S.C. § 1311(a).¹ ECF No. 28 at 16. After two rounds of motions to dismiss, the parties have filed the pending cross-motions for summary judgment and motion to dismiss. ECF Nos. 127, 134, 136, 138, 139.

II. EVIDENTIARY OBJECTIONS

Rule 56 allows objections to evidence when "the material cited . . . cannot be presented in a form that would be admissible in evidence." Fed. R. Civ. P. 56(c)(2). As this language suggests, at summary judgment, the evidence's propriety depends not on its form, but on its content. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001). The party seeking admission of evidence "bears the burden of proof of admissibility." Pfingston v. Ronan Eng'g Co., 284 F.3d 999, 1004 (9th Cir. 2002). Upon objection, that party must direct the district court to "authenticating documents, deposition testimony bearing on attribution, hearsay exceptions and exemptions, or other evidentiary principles under which the evidence in question could be deemed admissible . . . ." In re Oracle Corp. Sec. Litig., 627 F.3d 376, 385-86 (9th Cir. 2010). But courts are sometimes "much more lenient" with the affidavits and documents of the party opposing summary judgment. Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979).

Plaintiffs' objections on relevance and hearsay grounds are addressed below.

A. Relevance

First, "moving papers themselves--not separate tables of objections--are the correct mode of objection on relevance and similar grounds." Gonzalez v. Cty. of Yolo, No. 13-01368 KJM AC, 2015 WL 4419025, at *4 (E.D. Cal. July 17, 2015) (citations omitted). Federal Rule of Civil Procedure 56 expressly seeks out genuine disputes of material facts. "A court can award summary judgment only when there is no genuine dispute of material fact. It cannot rely on irrelevant facts, and thus relevance objections are redundant." Burch v. Regents of Univ. of Cal., 433 F. Supp. 2d 1110, 1119 (E.D. Cal. 2006).

Accordingly, the court overrules objections based on relevance.

B. Hearsay

Second, objections to form are often a poor fit for summary judgment. At this stage, the propriety of evidence depends not on its form, but on its content. Celotex, 477 U.S. at 324 ("We do not mean that the nonmoving party must produce evidence in a form that would be admissible at trial in order to avoid summary judgment . . . . [Rule 56] permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves."); see also Block, 253 F.3d at 418-19. Rule 56(e) uses the modal construction, "would be admissible," for a reason. In particular, hearsay objections are often premature at summary judgment when asserted by the moving party. Should the court grant a motion for summary judgment, it must do so on the basis of admissible evidence. Gonzalez, 2015 WL 4419025, at *4. But a party opposing a motion for summary judgment seeks a trial, not a verdict, and it stands to reason that if evidence may probably be converted to admissible form for trial, it should not be excluded at summary judgment. See Fraser, 342 F.3d at 1036 (declining to exclude hearsay statements because in a different form the testimony could be admitted at trial); Hatcher v. Cty. of Alameda, No. 09-1650, 2011 WL 1225790, at *3 (N.D. Cal. Mar. 31, 2011) (same).

To the extent objections are not premature and are proper at this time, evidence is admissible if it is defined as non-hearsay under Federal Rule of Evidence 801(d) or falls within ahearsay exception under Rules 803, 804, or 807. Rule 803(6) provides an exception for records of a regularly conducted activity. Rule 803(8) provides an exception for public records. And an opposing party's statement offered against that party is not considered hearsay. Fed. R. Evid. 801(d)(2)(A). Likewise, statements offered against a party that were made by the party's agent or employee on a topic that is within the scope of the employment relationship are excluded from the hearsay rule. Fed. R. Evid. 801(d)(2).

The objections to hearsay are overruled to the extent the evidence objected to on this ground is discussed below.

III. UNDISPUTED FACTS

Under the CWA regulations, "waters of the United States" cover all traditionally navigable waters, tributaries of these waters, and wetlands adjacent to traditionally navigable waters, the last of which will be discussed below. 33 C.F.R. § 328.3(a)(1), (5) and (7). In Tehama County, California, the Sacramento River is navigable-in-fact until it reaches San Francisco Bay and the Pacific Ocean. Duarte's Resp. to the United States' CWA Separate Stmt. (DRCWA) No. 1, ECF No. 150-11. Two tributaries of the Sacramento River in Tehama County are Coyote Creek and Oat Creek. DRCWA No. 2. In Tehama County, Coyote Creek generally flows easterly and southeasterly to its junction with Oat Creek. DRCWA No. 3. From that junction, Oat Creek meets the Sacramento River within a mile. DRCWA No. 4. The watersheds of Coyote Creek and Oat Creek contain associated streams and wetlands. DRCWA No. 5. A report by the United States' expert provides several aerial maps that show these waterways and their relation to plaintiff's property. The court includes several of the maps below for the purpose of clarifying the locations of plaintiff's property and the "waters of the United States" at issue here. Each map is marked with a compass on the upper right hand corner, indicating the top of the map is the North, the right of the map is the East, the left of the map is the West, and the bottom of the map is the South.

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Figure 34 Coyote Creek and its tributaries

Stokely Expert Report at 55, ECF No. 124-1 (showing Coyote Creek Watershed outlined in pink, and the plaintiffs' property outlined in black; black arrows point to headwater tributaries; yellow arrows point to a tributary of Coyote Creek; red arrows point to main stem of Coyote Creek below Paskenta Road; all branches and headwater tributaries join mainstem of Coyote Creek on or just downstream of plaintiffs' property).

John Duarte was the president of the Nursery when it purchased approximately 1,950 to 2,000 acres of real estate in Tehama County, California in April 2012, after referral of the site from a Brad Munson. Nursery's Resp. to United States' Due Process Separate Stmt. (NRDP) No. 4, ECF No. 153-1³; Munson Dep. 16:13-18, ECF No. 112; John Duarte Dep.21:11-13, 22-24, ECF No. 109. Coyote Creek flows along the northern border of the real estate, which was bounded on the west by Paskenta Road; the property has an unusual shape in the southwest corner, separated by a fence that is not shown on any of the maps. DRCW No. 7-9.

Prior to the April purchase, in March 2012, the Nursery entered into a contract with Goose Pond to sell approximately 1,500 acres of the northern portion of the real estate. NRDP No. 11. The Nursery then retained NorthStar Environmental (NorthStar), an environmental consulting firm, to provide a report and delineation map for the 1,500 acres. DRCWA No. 13; NRDP No. 19. The Nursery also asked NorthStar to provide a separate report and delineation map for the remaining approximately 450 acres, the parcel retained by the plaintiffs and at issue here (the Property).⁴ Id. The Nursery requested that NorthStar "map appropriate buffers around all wetlands." DRCWA No. 14. In May 2012, NorthStar sent a letter to Jim Duarte, father of plaintiff John Duarte, suggesting the Nursery should have NorthStar's draft delineations verified by the Army Corps prior to any grading activities. ECF No. 131-3, NSE0005677. At the time Jim Duarte was the chairman of the Nursery's board; John Duarte was the president of the Nursery, and had been the president since sometime between 2008 and 2010. John Duarte Dep. 21:22-22:5. As president, John Duarte was responsible for the general management of the Nursery, including decisions with respect to land purchase and land usage. Id. 22:9-14. In 2012, John Duarte had significant input over activities and precautions taken with respect to the real estate. Id. 23:7-15.

Prior to purchasing the approximately 2,000 acres, plaintiffs were aware of a February 2012...