Save the Colorado v. United States Department of the Interior ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Save the Colorado, et al., No. CV-19-08285-PCT-MTL 10 Plaintiffs, ORDER 11 v. 12 United States Department of the Interior, et al., 13 Defendants. 14 15 Pending before the Court is the Joint Motion to Strike Plaintiffs’ Reply Statement 16 of Facts and References to the Second Powell Declaration (Doc. 125) (the “Motion”), 17 which was filed by Intervenors Irrigation & Electrical Districts’ Association of Arizona 18 and Colorado River Energy Distributors Association, Inc. (collectively, the “Hydropower 19 Intervenors”). The Motion is fully briefed (Docs. 129, 130) and for the following reasons, 20 the Court grants in part, and denies in part, the Motion. 21 I. 22 Plaintiffs filed their Motion for Summary Judgment on January 26, 2022. (Doc. 92.) 23 On March 3, 2022, Federal Defendants filed their Motion for Judgment on the Pleadings 24 or, in the Alternative, Cross-Motion for Summary Judgment and Response to Plaintiffs’ 25 Motion for Summary Judgment. (Doc. 105.) On April 7, 2022, Intervenors Southern 26 Nevada Water Authority, Central Arizona Water Conservation District and The 27 Metropolitan Water District of Southern California (collectively “Lower Basin 28 Contractors”) filed their Joinder in Federal Defendants’ Motion for Judgment on the 1 Pleadings or, in the Alternative, Cross Motion for Summary Judgment. (Doc. 111.) 2 On April 8, 2022, Hydropower Intervenors, and the movant for this Motion, filed 3 their response in Opposition to Plaintiffs’ Motion for Summary Judgment and their 4 Controverting Statement of Facts and Separate Statement of Facts in Support of Opposition 5 to Plaintiff’s Motion for Summary Judgment. (Docs. 113, 114.) That same day, the States 6 of Arizona,* California, Colorado, Nevada, Utah, and Wyoming (collectively, the “State 7 Intervenors”) filed their Joint Response to Plaintiffs’ Motion for Summary Judgment; 8 Cross-Motion for Summary Judgment and Joinder in the Federal Government’s Motion; 9 Memorandum in Support of Motion. (Doc. 115.) 10 Plaintiffs filed their Combined Reply in Support of Their Motion for Summary 11 Judgment, and Response in Opposition to All Intervenors’ Cross-Motions for Summary 12 Judgment (Doc. 121), as well as their Controverting Statement of Facts to Hydropower 13 Intervenors’ Separate Statement of Facts in Support of Opposition to Plaintiffs’ Motion for 14 Summary Judgment (Doc. 122). 15 The Hydropower Intervenors’ seek to strike, pursuant to Local Rule 7.2(m), the 16 following: (1) Plaintiffs’ Controverting Statement of Facts to Hydropower Intervenors’ 17 Separate Statement of Facts in Support of Opposition to Plaintiffs’ Motion for Summary 18 Judgment (Doc. 122); and (2) all references to the Second Declaration of James L. Powell, 19 Ph.D (“Second Powell Declaration”) that appear in Plaintiffs’ Combined Reply and 20 Response (Doc. 121). (Doc. 125 at 1.) 21 II. 22 A. 23 Local Rule 56.1(a) requires the party moving for summary judgment to file a 24 separate statement of facts with its motion. The non-moving party must then file a 25 statement, separate from its memo, that specifically responds to each of the moving party’s 26 statements of fact and that sets forth any additional facts that make summary judgment 27 * “The State of Arizona acts through the Director of the Arizona Department of Water Resources for purposes of ‘[prosecuting] and defend[ing] all rights, claims and privileges 28 of this state [of Arizona] respecting interstate streams.’” (Doc. 115 at 1, n.1) (quoting Ariz. Rev. Stat. § 45-105(A)(9)). 1 inappropriate. L.R.Civ.P. 56.1(b). “Local Rule 56.1 does not provide for a reply statement 2 of facts or a response to the non-moving party’s separate statement of facts.” Kinnally v. 3 Rogers Corp., No. CV-06-2704-PHX-JAT, 2008 WL 5272870 at *1 (D. Ariz. Dec. 12, 4 2008). 5 Local Rule 7.2(m)(2) provides that any objection to the non-moving party’s 6 statement of facts, like Plaintiffs’ objections in their Controverting Statement of Facts, 7 must be made in a reply memorandum, and cannot be presented in a separate responsive 8 memorandum. L.R.Civ.P. 7.2(m)(2); see also E.E.O.C. v. AutoZone, Inc., No. 06-CV- 9 0926-PHX-SMM, 2008 WL 2509302 at *1 (D. Ariz. June 18, 2008) (“Should a moving 10 party have any objections or replies to arguments or facts made in the Response or its 11 supporting statement of facts, these ‘must be included in the responding party’s reply 12 memorandum for the underlying motion and may not be presented in a separate responsive 13 memorandum.’” (citing L.R.Civ.P. 7.2(m)(2)). 14 The Court agrees with the Hydropower Intervenors that Plaintiffs’ Controverting 15 Statement of Facts (Doc. 122) should be stricken because Plaintiffs submitted the “the 16 following controverting statement of facts to [Hydropower Intervenors] Separate 17 Statement of Facts in Support of Opposition to Plaintiffs’ Motion for Summary Judgment 18 (Dkt. #114).” (Doc. 122 at 2.) Plaintiffs should have instead included such objections and 19 arguments in their underlying Reply memorandum. The Court will allow Plaintiffs to file 20 a new Combined Reply and Response to incorporate such objections. 21 B. 22 The Court denies the Motion with respect to the Hydropower Intervenors second 23 request regarding the Second Powell Declaration. The Court will, however, allow 24 Hydropower Intervenors to file a sur-reply to address all references to the Second Powell 25 Declaration that may appear in Plaintiffs’ re-filed Combined Reply and Response, or other 26 arguments that Plaintiffs may add. See Glass v. Asic N., Inc., 848 F. App’x 255, 257 (9th 27 Cir. 2021) (“Where new evidence is presented in a reply to a motion for summary 28 judgment, the district court should not consider the new evidence without giving the 1 || movant an opportunity to respond.”) (quoting Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)). 3 TIT. 4 Accordingly, 5 IT IS ORDERED granting in part, and denying in part, the Joint Motion to Strike 6|| Plaintiffs’ Reply Statement of Facts and References to the Second Powell Declaration 7\| (Doc. 125). 8 IT IS FURTHER ORDERED that Plaintiffs’ Controverting Statement of Facts to 9|| Hydropower Intervenors’ Separate Statement of Facts in Support of Opposition to || Plaintiffs’ Motion for Summary Judgment (Doc. 122) shall be stricken from the docket. 11 IT IS FURTHER ORDERED that Plaintiffs shall have until September 21, 2022, to file anew Combined Reply and Response brief incorporating their objections. 13 IT IS FINALLY ORDERED that Hydropower Intervenors are granted leave to file a Sur-Reply brief no later than September 28, 2022. 15 Dated this 13th day of September, 2022. 16 WMichak T. Shure 18 Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28 -4-