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Glenn-Colusa Irrigation District v. United States Army Corps of Engineers

United States District Court, E.D. California

July 18, 2019

GLENN-COLUSA IRRIGATION DISTRICT, Plaintiff,
v.
UNITED STATES ARMY CORPS OF ENGINEERS; ASSISTANT SECRETARY OF THE ARMY FOR CIVIL WORKS JO-ELLEN DARCY, in her official capacity; LIEUTENANT GENERAL TODD SEMONITE, in his official capacity; and COLONEL DAVID RAY, in his official capacity, Defendants.

          MEMORANDUM & ORDER RE: DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

          WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE.

         Plaintiff 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.)

         I. Background

         Plaintiff 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).)

         In 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).)

         The 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.

         The PCA 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.” (Id.)

         Part of 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.)

         In 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).)

         After 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.

         In 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.)[1] 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.[2]

         II. Legal Standard

         Summary 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).

         The 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 ...


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