United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
ANTHONY W. ISHII, Senior District Judge.
On August 23, 2013, Plaintiff, Tri-Dam, filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. On September 16, 2013, Defendant, Andreana Michael, filed an opposition. On September 23, 2013, Plaintiff filed its reply. For the following reasons Plaintiff's motion for summary judgment shall be denied.
II. FACTS AND PROCEDURAL BACKGROUND
Tri-Dam, a joint venture between the South San Joaquin Irrigation District and Oakdale Irrigation District, owns and operates the Tulloch Hydroelectric Project No. 2067 located near the city of Copperopolis, California, pursuant to a license issued by the Federal Energy Regulatory Commission ("FERC"). Complaint at ¶¶ 3-4. The Tulloch Project boundary extends approximately 1, 619 acres and includes all the land within the 515-foot elevation contour surrounding the Tulloch Reservoir. Complaint at ¶ 5. FERC first granted Tri-Dam a license to operate the Tri-Dam Project on January 1, 1955, for a term ending December 31, 2004. Complaint at ¶ 8. Article 39 of the license granted Tri-Dam the authority to grant permission for use of lands within the Tulloch Project boundary without prior approval of FERC. Complaint at ¶ 8; Tulloch Reservoir Shoreline Management Plan, December 2002, ("SMP") at p. 1-1.
FERC requires that each licensee (Tri-Dam) obtain control of all lands needed for operation and maintenance of the project. FERC License at p. 35, 114 FERC ¶ 62, 162 (2006). Sixty-one percent of the land within the FERC Project Boundary is privately owned, twenty-six percent of the land is owned by the Oakdale and South San Joaquin Irrigation Districts and twelve percent is owned by either the state or federal governments. SMP at p. 6. Tri-Dam claims to have obtained a flowage easement for relating to Defendant's land within the FERC Project boundary in 1957. Plaintiff disputes whether the deed, creating the easement, granted by Joe Sanguinetti on May 9th, 1957 applies to their home at 194 Sanguinetti Court. Defendant's Response to Separate Statement of Undisputed Material Fact ("SSF"), Doc. 34 at ¶¶ 11-12. The easement to Oakdale and South San Joaquin Irrigation Districts, granted the following uses and purposes:
(a) The right to permanently overflow, flood and cover [the FERC Project Boundary] land with flood, slack, or back water created by the erection and operation of the Tulloch Dam across the Stanislaus River;
(b) The right to enter upon said land from time to time to clear, destroy, or dispose of any timber or other natural growth, any obstructions, accumulations, trash, filth and any other thing which would in any way interfere with the use of said reservoir, or the waters therein, or tend to render unsafe or unsanitary either the reservoir created by said dam or the margin thereof;
(c) The right to ingress to and egress from said lands for the purposes aforesaid.
Request for Judicial Notice ("RJN"), Exhibit A, Conveyance of Easement, Doc. 27-1 at p. 4; SSF at ¶ 12; SMP at p. 6. This easement applied to nine parcels owned by Mr. Sanguinetti and described in a lengthy description of meets and bounds, all within the 515-foot elevation contour elevation of the Tulloch Reservior. Id.
In 2002, Tri-Dam developed Tulloch Reservoir's current SMP in anticipation of obtaining a new license for the Tulloch Project. Observing the FERC license required Tri-Dam to obtain FERC approval for (1) actions that would in any way reduce the storage capacity of Tulloch Reservoir and (2) use of lands within the FERC Project Boundary, the SMP recognized there was considerable public interest for development of the Tulloch Reservoir shoreline and that some of this development could conceivably have only minor impacts on reservoir storage or project operations. Accordingly, the SMP expressed Tri-Dam's need to approach FERC for general approval of minor development activities to facilitate such activities within the Project Boundary and avoid the need to obtain FERC approval for every individual development activity.
The SMP described the minor development activities for which Tri-Dam had requested FERC's approval. Such minor development activities include the erection of a retaining wall or construction of a dock. The SMP also outlined an "encroachment" permitting scheme through which parties could apply for - and Tri-Dam would issue - permits authorizing a particular use or facility within the FERC Project Boundary. According to the SMP, all proposed development activities are subject to requirements of applying for and obtaining a Tri-Dam encroachment permit.
On December 23, 2002, Tri-Dam filed an application with FERC for a new license, pursuant to sections 4(e) and 15 of the Federal Power Act (FPA, 16 U.S.C §§ 791 et seq.), to continue operation and maintenance of the Tulloch Project; the SMP was included as an exhibit to the new license application. On February 16, 2006, FERC issued a new license to Tri-Dam for a period of 39 years, 11 months subject to the terms and conditions of the FPA, which was incorporated into the license by reference. (Between 2004 and 2006, Tri-Dam operated the Tulloch Project under an annual license pending the disposition of its new license application.) Article 411 of this license approves the SMP. Article 413 gives Tri-Dam the authority to grant permission for certain uses and occupancies of project lands and waters, including non-commercial piers, landings and boat docks, without prior FERC approval. Article 413 also imposes a continuing responsibility upon Tri-Dam to supervise and control the uses and occupancies for which it grants permission. If a permitted use or occupancy violates any condition imposed by the license or by Tri-Dam, article 413 further gives Tri-Dam authority to take any lawful action necessary to correct the violation, including canceling the permission to use and occupy the project lands and waters and requiring the removal of any non-complying structures and facilities.
On April 13, 2005, Tri-Dam issued a permit to the previous owners of Defendant's property for construction of a retaining wall and dock. Decl. of Dan Pope, Doc. 30 at ¶ 12.
In 2010, Defendant purchased the real property at 194 Sanguinetti Court, Copperopolis, California ("Subject Property"), waterfront property located at Tulloch Reservoir, more particularly known as Calaveras County Assessor's Parcel No. 053-018-051. Decl. of Andreana Michael, Doc. 33-1 at ¶ 2. When Defendant took possession of the property a retaining wall was in place. Decl. of Andreana Michael at ¶ 3. Defendant had seen pictures of the property that depicted a dock but when she took possession of the ...