Enforcement v. Connor, Case No. 06–CV–2368 JLS (WMC).

CourtUnited States District Courts. 9th Circuit. United States District Court (Southern District of California)
Writing for the CourtJANIS L. SAMMARTINO, District Judge.
Citation762 F.Supp.2d 1214
PartiesCITIZENS LEGAL ENFORCEMENT AND RESTORATION, Plaintiff,v.Michael L. CONNOR; Ken Salazar; Robert W. Abbey; Rowan W. Gould; Jill Johnson; Ed Smith; et al., Defendants.
Decision Date11 January 2011
Docket NumberCase No. 06–CV–2368 JLS (WMC).

762 F.Supp.2d 1214

CITIZENS LEGAL ENFORCEMENT AND RESTORATION, Plaintiff,
v.
Michael L. CONNOR; Ken Salazar; Robert W. Abbey; Rowan W. Gould; Jill Johnson; Ed Smith; et al., Defendants.

Case No. 06–CV–2368 JLS (WMC).

United States District Court, S.D. California.

Jan. 11, 2011.


[762 F.Supp.2d 1217]

Craig Alan Sherman, Law Office of Craig A. Sherman, San Diego, CA, for Plaintiff.David L. Negri, U.S. Department of Justice, Boise, ID, Rochelle L. Russell, United States Department of Justice, San Francisco, CA, David R. Saunders, Clayson Mann Yaeger and Hansen, Corona, CA, for Defendants.

ORDER: (1) GRANTING RECLAMATION'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 80) AND DENYING PLAINTIFF'S CROSS–MOTION (Doc. No. 83); (3) DISMISSING PLAINTIFF'S CLAIMS AGAINST PVID; (4) DENYING AS MOOT PVID'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 82) AND PLAINTIFF'S CROSS–MOTION (Doc. No. 87); (5) GRANTING IN PART AND DENYING IN PART RECLAMATION'S MOTION TO STRIKE (Doc. No. 98); AND (6) GRANTING IN PART AND DENYING IN PART PVID'S DAUBERT MOTION (Doc. No. 95)
JANIS L. SAMMARTINO, District Judge.

Presently before the Court are cross-motions for summary judgment by all parties (Doc. Nos. 80, 82, 83, 87), a Daubert motion by Defendants Jill Johnson and Ed Smith 1 (Doc. No. 95), and a motion to

[762 F.Supp.2d 1218]

strike by Defendants Michael L. Connor, Ken Salazar, Robert W. Abbey, and Rowan W. Gould 2 (Doc. No. 98). Having reviewed the parties' arguments and the law, the Court GRANTS Reclamation's 3 motion for summary judgment, DENIES Plaintiff's motion for summary judgment against Reclamation, DISMISSES all claims against PVID for lack of subject matter jurisdiction, and therefore DENIES AS MOOT the other two pending summary judgment motions.

BACKGROUND

This case concerns environmental conditions in a former part of the Colorado River channel known as the Original River Channel (ORC). Plaintiff is an organization with “the purpose of preservation and restoration of natural waterways in the Palo Verde Lagoon, the Colorado River, and its tributaries. The members and participants of [sic] [Citizens Legal Enforcement and Restoration (CLEAR) ] ... include a broad-based and community-wide association of non-partisan individuals, businesses[,] and organizations concerned with bodies of water near and adjacent to the Lower Colorado River both north and south of the town of Palo Verde, California.” (Compl. ¶ 7.)

The ORC used to be part of the Colorado River. However, as part of the Cibola Cut project, a new main riverbed was constructed and the ORC bypassed. Planning on the project began around 1955 based on conditions that “had existed for many years.” (Doc. No. 80–1 (Reclamation's Mem. ISO MSJ), at 7.) For example, “[t]he Palo Verde Valley and the Cibola Valley ... had long experienced problems with river flow and poor drainage associated with sedimentation in the Colorado River channel.” ( Id.) Earlier efforts to rectify these situations, such as the “pilot cut,” did not succeed. ( Id.) Ultimately, “ ‘to provide a safe river channel for operational purposes of the Colorado River by protection of the river from possible damage that could occur from high river discharges in the form of major channel changes which could tremendously increase the sediment load,’ ” Reclamation decided to construct the Cibola Cut. ( Id. at 8 (quoting A.R. US0059 4).) Construction began in 1967 and was completed in 1970. ( Id. at 5.) Upon the Cibola Cut's completion, the ORC had only two remaining sources of water. First, the levee separating the ORC from the new main riverbed allows through a small flow of water from the Colorado River. Second, water flows from the Palo Verde Outfall Drain into the ORC at approximately 500 cubic feet per second. (Doc. No. 100 (Reclamation's Opp'n), at 16.)

Plaintiff is suing two primary defendants: the Bureau of Reclamation and PVID. Congress created Reclamation as part of “a massive program to construct and operate dams, reservoirs, and canals for the reclamation of the arid lands in 17 Western States.”

[762 F.Supp.2d 1219]

California v. United States, 438 U.S. 645, 650, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). One of Congress's supplemental acts authorized Reclamation to use funds “for the purpose of controlling the floods, improving navigation, and regulating the flow of the Colorado River.” 43 U.S.C. § 617. Reclamation was responsible for the design, planning, and construction of the major federal work at issue here—the Cibola Cut.

PVID “is an irrigation district organized in 1923 under a special act of the California legislature.” (Doc. No. 82–1 (PVID's Mem. ISO MSJ), at 3.) That “act also authorized the governing board of PVID to manage and conduct all affairs of the district, including the purchase, construction, and maintenance of levees, dams, and other drainage works, for the purpose of promoting water conservation and use for irrigation purposes.” ( Id.) The district is bordered to the east and south by the Colorado River and encompasses “almost 189 square miles of territory.” ( Id. at 4.)

One of PVID's functions is to “deliver[ ] Colorado River water for potable and irrigation uses to supply over 120,000 acres of irrigated farmland within the district.” ( Id.) This water is diverted from the Colorado River and flows through a “system of approximately 250 miles of irrigation canals and laterals.” ( Id.) “PVID also maintains a drainage system consisting of approximately 140 miles of natural and man-made ditches and channels designed to collect irrigation water runoff and groundwater drainage.” ( Id.) The main drainage channel, known as the “Outfall Drain,” runs in a southerly direction “into the boundaries of the Cibola National Wildlife Refuge” and eventually converges “with the former reach of the Colorado River.” ( Id.) From there, the water proceeds “through the [Original] River Channel for another 8.5 miles before it flows into the mainstream of the Colorado River.” ( Id. at 4–5.)

LEGAL STANDARD

Federal Rule of Civil Procedure 56 permits a court to grant summary judgment where (1) the moving party demonstrates the absence of a genuine issue of material fact and (2) entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Material,” for purposes of Rule 56, means that the fact, under governing substantive law, could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir.1997). For a dispute to be “genuine,” a reasonable jury must be able to return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

The initial burden of establishing the absence of a genuine issue of material fact falls on the moving party. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. The movant can carry his burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party “failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Id. at 322–23, 106 S.Ct. 2548. “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

Once the moving party establishes the absence of genuine issues of material fact, the burden shifts to the nonmoving party to set forth facts showing that a genuine issue of disputed fact remains. Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The nonmoving party cannot oppose a properly supported summary judgment motion by “rest[ing] on mere allegations or denials of his pleadings.” Anderson, 477 U.S. at 256, 106 S.Ct. 2505. When ruling on a summary

[762 F.Supp.2d 1220]

judgment motion, the court must view all inferences drawn from the underlying facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

ANALYSIS
1. Reclamation's Motion to Strike

Reclamation moves to strike the declarations of Gary Niles, Stuart H. Hurlbert, Tom Carney, and George P. Forni II. ( See Doc. No. 98–1 (Mem. ISO Mot. to Strike), at 2 n. 1.) According to Reclamation, Hurlbert, Carney and Forni's declarations were not disclosed prior to the expert witness report disclosure deadline and thus should be stricken. ( Id. at 2.) It also claims that these declarations contain new opinions and information not previously disclosed. ( Id.) Further, Reclamation argues that Niles's non-expert declaration is not within the permitted scope of evidence for this case. ( Id. at 3.)

Plaintiff argues that these declarations are merely a reiteration of the same information contained within the disclosed expert reports. (Doc. No. 108 (Opp'n to Mot. to Strike) at 1–2.) It also claims that Niles is necessary to, inter alia, establish the Plaintiff's standing to bring this suit. ( Id. at 3.)

Because this is an Administrative Procedures Act (APA) case, only administrative materials are proper evidence. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 104–05, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). There is, however, an exception that allows supplementation in the case of failure to act claims. See S.F. BayKeeper v. Whitman, 297 F.3d 877, 886 (9th Cir.2002). In this case, Magistrate Judge McCurrine allowed Plaintiff (and Defendants) to supplement the administrative record with expert reports. ( See Doc. Nos. 52, 55, 74.)

The parties agree that the declarations were not produced prior to the expert witness deadline. ( See Mem. ISO Mot. to Strike 3; Opp'n to Mot. to Strike 2.) As such, they should be stricken as improper supplementation of the expert witness reports. And...

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4 practice notes
  • Aderholt v. Bureau of Land Mgmt., Civil Action No. 7:15-cv-00162-O
    • United States
    • U.S. District Court — Northern District of Texas
    • June 29, 2016
    ...an "affirmative duty" on the state regarding planning and allocating water resources. Citizens Legal Enf't & Restoration v. Connor, 762 F. Supp. 2d 1214, 1231 (S.D. Cal. 2011). There, the court held that the relevant constitutional provision requiring that "the waste or unreasonable use orP......
  • Franco v. U.S. Forest Serv., No. 2:09-cv-01072-KJM-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 31, 2016
    ...in court. See, e.g., Crown Coat Front Co. v. U.S., 386 U.S. 503, 510-11 (1967); Citizens Legal Enforcement & Restoration v. Connor, 762 F. Supp. 2d 1214 (S.D. Cal. 2011), aff'd, 540 F. App'x 587 (9th Cir. 2013). In this case, on January 14, 2002, Robert Hammond, a District Ranger with the U......
  • Cal. Sportfishing Prot. Alliance v. U.S. Bureau of Reclamation, 1:15-cv-00912 LJO BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 20, 2015
    ...remotely suggests that filing for a permit is agency action. At least one case, Citizens Legal Enforcement & Restoration v. Connor, 762 F. Supp. 2d 1214, 1223-24 (S.D. Cal. 2011) ("CLEAR"), aff'd, 540 F. App'x 587 (9th Cir. 2013), suggests otherwise. In CLEAR, the plaintiffs alleged that Re......
  • Padres Hacia UNA Vida Mejor v. Jackson, 1:11-cv-1094 AWI DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 5, 2012
    ...Unit Food Producers v. United States 772 F.Supp.2d 1210, 1228 (E.D. Cal. 2011); Citizens Legal Enforcement & Restoration v. Connor, 762 F.Supp.2d 1214, 1229-30 (S.D. Cal. 2011); Gros Ventre Tribe v. United States, 344 F.Supp.2d 1221, 1229 n.3 (D. Mont. 2003). Accordingly, the continuing vio......
4 cases
  • Aderholt v. Bureau of Land Mgmt., Civil Action No. 7:15-cv-00162-O
    • United States
    • U.S. District Court — Northern District of Texas
    • June 29, 2016
    ...an "affirmative duty" on the state regarding planning and allocating water resources. Citizens Legal Enf't & Restoration v. Connor, 762 F. Supp. 2d 1214, 1231 (S.D. Cal. 2011). There, the court held that the relevant constitutional provision requiring that "the waste or unreasonable use orP......
  • Franco v. U.S. Forest Serv., No. 2:09-cv-01072-KJM-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 31, 2016
    ...in court. See, e.g., Crown Coat Front Co. v. U.S., 386 U.S. 503, 510-11 (1967); Citizens Legal Enforcement & Restoration v. Connor, 762 F. Supp. 2d 1214 (S.D. Cal. 2011), aff'd, 540 F. App'x 587 (9th Cir. 2013). In this case, on January 14, 2002, Robert Hammond, a District Ranger with the U......
  • Cal. Sportfishing Prot. Alliance v. U.S. Bureau of Reclamation, 1:15-cv-00912 LJO BAM
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • October 20, 2015
    ...remotely suggests that filing for a permit is agency action. At least one case, Citizens Legal Enforcement & Restoration v. Connor, 762 F. Supp. 2d 1214, 1223-24 (S.D. Cal. 2011) ("CLEAR"), aff'd, 540 F. App'x 587 (9th Cir. 2013), suggests otherwise. In CLEAR, the plaintiffs alleged that Re......
  • Padres Hacia UNA Vida Mejor v. Jackson, 1:11-cv-1094 AWI DLB
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • April 5, 2012
    ...Unit Food Producers v. United States 772 F.Supp.2d 1210, 1228 (E.D. Cal. 2011); Citizens Legal Enforcement & Restoration v. Connor, 762 F.Supp.2d 1214, 1229-30 (S.D. Cal. 2011); Gros Ventre Tribe v. United States, 344 F.Supp.2d 1221, 1229 n.3 (D. Mont. 2003). Accordingly, the continuing vio......

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