United States District Court, E.D. California
MEMORANDUM & ORDER RE: DEFENDANTS' MOTION FOR
PARTIAL SUMMARY JUDGMENT
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.
Glenn-Colusa Irrigation District brought this action against
defendants the United States Army Corps of Engineers
(“USACE”), Assistant Secretary of the Army for
Civil Works Jo-Ellen Darcy, Lieutenant General Todd Semonite,
and Colonel David Ray, alleging that the USACE breached a
construction contract by failing to construct an irrigation
facility according to the contract's specifications.
(Compl. (Docket No. 1).) Before the court is defendants'
Motion for Partial Summary Judgment. (Docket No. 44.)
is a state government entity and an irrigation district that
provides water to farms in Glenn and Colusa counties. (Decl.
of Thaddeus Bettner (“Bettner Decl.”) ¶ 4
(Docket No. 45-2).) Plaintiff diverts water from the
Sacramento River at a pump station near Hamilton City and
then conveys that water through a canal to approximately 1,
500 landowners. (Id. ¶ 5.) The USACE is a
subdivision of the United States Army that builds and
maintains infrastructure in the United States. (See U.S. Army
Corps of Engineers, http://www.usace.army.mil/About (last
visited July 10, 2019).) The individual defendants are Army
personnel who oversee USACE operations. (See Compl.
¶¶ 18-20 (Docket No. 1).)
1991, the United States brought an Endangered Species Act
action against plaintiff in this court. (Pl.'s App. Ex. 2
(Docket No. 46-2).) The government alleged that plaintiff
unlawfully took endangered Chinook salmon with defective fish
screens at its Hamilton City pump station. (See Id.
at 1.) After Judge Levi permanently enjoined plaintiff from
pumping water during the salmon's migration season, the
parties developed a long-term solution and created the
Hamilton Fish Screen Project. (Id.) As part of that
project, the parties entered into a Project Cooperation
Agreement (“PCA”) and agreed to co-fund the
construction of an irrigation gradient facility designed to
improve the performance of a fish screen plaintiff
implemented at the pump station. (Pl.'s App. Ex. 4
(Docket No. 46-4).)
gradient facility is an in-channel permanent rock structure
located near plaintiff's intake channel off the
Sacramento River. (Bettner Decl. ¶ 9.) The facility
regulates the water surface levels at the pumping station and
was engineered to improve performance of the
newly-implemented fish screen. (Bettner Decl. ¶ 11.) The
facility was designed to help plaintiff meet demand and also
ensure compliance with the pumping restrictions imposed due
to the prior litigation. (Pl.'s App. Ex. 3 at 15 (Docket
No. 46-3).) Congress authorized the construction of the
gradient facility in Section 102 of the Energy and Water
Development Appropriations Act of 1990, Pub. L. No. 101-101,
103 Stat. 641, 649. This authorization directed the Secretary
of the Army, acting through the Chief of Engineers, to
complete engineering and design and proceed with construction
of the gradient facility.
sets forth the obligations of the parties with respect to the
construction of the gradient facility. (Pl.'s App. Ex.
4.) As a non-federal sponsor, the PCA required plaintiff to
contribute a minimum of 25% of total project costs for the
facility. (Id. at 5.) Additionally, USACE received
funds for the project from Congress on the condition that it
expeditiously construct the project, applying the procedures
traditionally applied to federal projects pursuant to federal
law. (Id. at 4.) The PCA specified that
“performance of all work on the Project . . . shall be
exclusively within the control of the Government.”
the PCA, and the focus of defendants' motion, references
bank stabilization work near River Mile 208 (“RM
208”). (Id. at 1.) RM 208 is located about two
miles upstream from the gradient facility. (Pl.'s App.
Ex. 5 at 50:22-25 (Docket No. 46-5).) The PCA refers to RM
208 and notes that congressional authorization for the
construction of the gradient facility was modified by Section
305 of the Water Resources Development Act of 1999, Pub. L.
No. 106-53, 113 Stat. 269, 299. (Pl.'s App. Ex. 4 at 1.)
Citing Section 305, the PCA states that the government may
“carry out bank stabilization work in the riverbed
gradient facility, particularly, in the vicinity of River
Mile 208, if the Assistant Secretary of the Army (Civil
Works) determines that such work is necessary to protect the
overall integrity of the project, on the condition that
additional environmental review of the project is conducted,
which work, if approved may be reflected in an amendment to
this Agreement.” (Id.)
2001, the parties executed a Schedule and Cost Change Request
to complete engineering reports and environmental assessments
“to evaluate alternatives for the RM 208 bank
stabilization feature of the gradient facility
project.” (Pl.'s App. Ex. 8 (Docket No. 46-8).) In
the years after, the USACE contracted with outside parties to
complete the referenced engineering and environmental work.
(See Pl.'s App. Exs. 9-15 (Docket Nos. 46-9 to 46-17).)
Ultimately, plaintiff admits that the Assistant Secretary of
the Army made no determination that bank stabilization work
was necessary to protect the overall integrity of the
gradient facility project and the parties did not execute an
amendment to the PCA to include such work at ¶ 208.
(Decl. of Benjamin Hall (“Hall Decl.”) Ex. A at 6
(Docket No. 44-3).)
the parties were unable to resolve the issues they had with
the project, plaintiff brought an action against the
government in the Court of Federal Claims, alleging that the
United States breached the PCA by failing to construct the
gradient facility according to the PCA's specifications.
See Glenn-Colusa Irrigation Dist. v. United States,
129 Fed.Cl. 593 (2016). The Court of Federal Claims dismissed
that action for lack of jurisdiction. Id. at 599.
January 2017, plaintiff filed this action, alleging causes of
action against defendants for: (1) breach of contract, (2)
breach of the implied covenant of good faith and fair
dealing, (3) breach of implied warranty, (4) declaratory
judgment, and (5) violation of the Administrative Procedure
Act. (Compl. ¶¶ 20-26.) Plaintiff alleges, as one of
its categories of project defects, that USACE failed to
construct improvements at ¶ 208. (Id.
¶¶ 84-89.) Defendants now seek summary judgment as
to all claims arising out of the alleged failure to conduct
bank stabilization efforts near RM 208.
judgment is proper “if the movant shows that there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). A material fact is one that could affect the outcome
of the suit, and a genuine issue is one that could permit a
reasonable jury to enter a verdict in the non-moving
party's favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the initial burden of
establishing the absence of a genuine issue of material fact
and can satisfy this burden by presenting evidence that
negates an essential element of the non-moving party's
case. Celotex Corp. v. Catrett,477 U.S. 317, 322-23
(1986). Alternatively, the movant can demonstrate that the
non-moving party cannot provide evidence to support an
essential element upon which it will bear the burden of proof
at trial. Id. Any inferences drawn from the
underlying facts must, however, be ...