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Michael L. Connor;Ken Salazar v. Jill Johnson; Ed Smith; et al

January 11, 2011


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States 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*fn1 (Doc. No. 95), and a motion to strike by Defendants Michael L. Connor, Ken Salazar, Robert W. Abbey, and Rowan W. Gould*fn2 (Doc. No. 98). Having reviewed the parties' arguments and the law, the Court GRANTS Reclamation's*fn3 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.


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 *fn4 ).) 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." California v. United States, 438 U.S. 645, 650 (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.)


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 (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 (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.

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. 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. "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. 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. When ruling on a summary 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 (1986).


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 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 104--05 (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 if Plaintiff is correct that they contain no new information, there is no prejudice because all of the relevant information is contained in the expert reports. However, because the declarations contain new information, they violate the expert witness disclosure rules. (Compare, e.g., Doc. No. 86 (Forni Decl.) with Forni Decl., Ex. 1 (Forni Expert Report).) Accordingly, Reclamation's motion to strike Hurlbert, Carney and Forni's declarations is GRANTED.

As to Declarant Niles, the Court declines to strike his declaration. The Court will, however, consider Niles's declaration only insofar as it pertains to the issue of standing. No other valid basis has been offered for his testimony. As to Plaintiff's claim that Niles's declaration provides "background," such testimony is not allowed on APA claims under evidence supplementation rules. See Sw. Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir. 1996). Nor does Plaintiff's citation to Sierra Club v. United States Department of Transportation, 520 F. Supp. 460 (N.D. Cal. 1988), change this conclusion. Sierra Club relies on Asarco, Inc. v. E.P.A., 616 F.2d 1153 (9th Cir. 1980), which in turn relies on Bunker Hill Co. v. E.P.A., 572 F.2d 1286 (9th Cir. 1977). And as Bunker Hill makes clear, the relevant extra-record evidence must relate to "complex technical testimony." Id. at 1292. Because Declarant Niles involves offers no explanation of this type of testimony, the Court will only consider his declaration for purposes of standing.

2. PVID's Daubert Motion

Next, PVID moves under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude the testimony of George P. Forni, II. (Doc. No. 95 (Daubert Mot.), at 2--3.) It makes two arguments to this end. Second, but addressed first here, PVID claims that three statements in Mr. Forni's expert report contain improper legal opinion. (Id. at 3--4.) These statements involve PVID's responsibility for maintenance of the ORC. (Id.) Plaintiff agrees that these statements are not proper expert testimony. (Doc. No. 106 (Pl.'s Reply ISO PVID MSJ), at 9.) Therefore, the Court STRIKES these statements.

PVID's more significant argument is that Mr. Forni does not have sufficient training and expertise in the field within that his opinion falls to offer expert testimony. PVID points to his lack of a college degree or any training in "engineering, hydrology, or other fields of study that would qualify him as an expert as to why the [Original] River Channel is in its current condition." (Daubert Mot. 2.) Plaintiff responds that Mr. Forni is indeed qualified based on his practical experience. (Pl.'s Reply ISO PVID MSJ 9.) It points to Mr. Forni's "daily management of aquatic construction and remediation projects, dredging operations, mechanical aquatic vegetation abatement, lake and water feature construction and renovation, . . . design and consulting for municipalities and private agencies," and his authorship of "numerous reports, articles, abstracts[,] and case studies related to waterway design, construction[,] and management and vegetation control." (Id.)

Given that PVID does not challenge Mr. Forni's experience, his testimony is not properly excluded. Federal Rule of Evidence 702 allows experts to testify based on, inter alia, their knowledge, skill, or experience. Fed. R. Evid. 702. In this case, Mr. Forni appears to have relevant experience from which he may testify. Thus, PVID's Daubert motion is GRANTED IN PART and DENIED IN PART.

3. Plaintiff's Claims Against Reclamation

A. Legal Standard

Plaintiff brings all of its claims against Reclamation pursuant to the APA. Under the APA, "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5 U.S.C. § 702.

This provision contains two separate requirements. First, the person claiming a right to sue must identify some "agency action" that affects him in the specified fashion; it is judicial review "thereof" to which he is entitled. The meaning of "agency action" for purposes of § 702 is set forth in 5 U.S.C. § 551(13), . . . which defines the term as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act," 5 U.S.C. § 551(13). When, as here, review is sought not pursuant to specific authorization in the substantive statute, but only under the general review provisions of the APA, the "agency action" in question must be "final agency action."

Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882 (1990). "Second, the party seeking review under § 702 must show that he has 'suffer[ed] legal wrong' because of the challenged agency action, or is 'adversely affected or aggrieved' by that action 'within the meaning of a relevant statute.'"*fn5 Id. at 883.

"The APA provides relief for a failure to act in § 706(1): 'The reviewing court shall . . . compel agency action unlawfully withheld or unreasonably delayed.'" Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004) [hereinafter SUWA]. "'[F]ailure to act,' is . . . properly understood as a failure to take an agency action-that is, a failure to take one of the agency actions (including their equivalents) earlier defined in § 551(13)." Id. "The important point is that a 'failure to act' is properly understood to be limited, as are the other items in § 551(13), to a discrete action." Id. at 63. "A second point central to the analysis . . . is that the only agency action that can be compelled under the APA is action legally required." Id. "The limitation to required agency action rules out judicial direction of even discrete agency action that is not demanded by law." Id. at 65.

B. Violation of Section 10 of the Federal Rivers and Harbors Act

Plaintiff's first cause of action alleges a violation of section 10 of the Rivers and Harbors Act of 1899 (RHA), 33 U.S.C. § 403. (Compl. ¶¶ 46--50.) This provision prohibits the "creation of any obstruction not affirmatively authorized by Congress[] to the navigable capacity of any of the waters of the United States" without prior "recommend[tion] by the Chief of Engineers and authoriz[ation] by the Secretary of the Army." 33 U.S.C. § 403. "The purpose of Section 10 is to prevent obstruction of the navigable capacity of the ...

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