Arizona, State of v. International Boundary and Water Commission et al

Filing 202

ORDER ADOPTING REPORT AND RECOMMENDATION 198 . The City of Nogales' Motion for Summary Judgment Regarding Count II of Third Party Plaintiff USIBWC's Third Party Claim (Doc. 166) is GRANTED. The Clerk of Court to enter judgment in favor of the City of Nogales on Claims 1 and 2 of the Third-Party Complaint and dismiss the Third-Party Complaint (Doc. 5) with prejudice. USIBWC's Motion for Partial Summary Judgment on Liability on Count 9 of the State's Amended Complaint (Doc. 1 68) is GRANTED. Plaintiff State's Motion for Partial Summary Judgment Count 9 (Doc. 170) is GRANTED. This matter is referred back to Magistrate Judge Ferraro for pretrial proceedings for purposes of conducting a status conference to determine w hether the parties seek to pursue a resolution regarding the injunctive relief and civil penalties sought in the First Amendment Complaint and any award of attorney's fees and costs. Signed by Senior Judge Frank R Zapata on 9/20/17. (See attached PDF for complete information.) (KAH)

1
2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

State of Arizona, ex rel, Henry R. Darwin,
Director, Arizona Department of
Environmental Quality,

No. CV 12-644 TUC-FRZ
ORDER

Plaintiff,

11
12

v.

13

International Boundary and Water
Commission, United States Section;
Edward Drusina, in his official capacity
as Commissioner of the International
Boundary and Water Commission, United
States Section,

14
15
16
17

Defendants and ThirdParty Plaintiffs,

18

v.

19

City of Nogales, Arizona,

20

Third-Party Defendant.

21
22

The factual and procedural history of this action are set forth in detail in the

23

Court’s previous Orders ruling on motions for partial summary judgment (Docs. 35, 85

24

and 127) and the Reports and Recommendations of Magistrate Judge D. Thomas Ferraro

25

addressing Plaintiff State of Arizona’s Motion for Partial Summary Judgment: Liability

26

for Counts 2, 5, 6, 7, 8, and 9 (Doc. 68); the Amended Motion of the City of Nogales for

27

Summary Judgment on Third Party Claim (Doc. 102); and the present Report and

28

Recommendation − addressing (I) The City of Nogales’ Motion for Summary Judgment

1

Regarding Count II of Third Party Plaintiff USIBWC’s Third Party Claim (Doc. 166);

2

(II) USIBWC’s Motion for Partial Summary Judgment on Liability on Count 9 of the

3

State’s Amended Complaint (Doc. 168); and (III) Plaintiff State’s Motion for Partial

4

Summary Judgment – Count 9 (Doc. 170) − now before the Court for consideration (Doc.

5

198).

6

This matter has been referred to the United States Magistrate Judge for all pretrial

7

proceedings and report and recommendation in accordance with the provisions of 28

8

U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United

9

States District Court for the District of Arizona.

10
11

Before the Court for consideration is the Report and Recommendation (Doc. 198)
of Magistrate Judge D. Thomas Ferraro recommending that this Court:

12

(I) grant the State’s motion for summary judgment on Count 9 of the First

13

Amended Complaint and hold that there is no genuine dispute of material fact that the

14

USIBWC is at least partial owner or operator of the International Outfall Interceptor

15

(“IOI”), based in part on the USIBWC having admitted partial ownership of the IOI –

16

from which wastewater is continuously discharged into the Nogales Wash in violation of

17

Ariz. Rev. Stat. § 49-255-01 − and further based on the finding that the IOI is one

18

continuous 8.8 mile pipeline and there is no physical distinction in the portions of the IOI

19

at issue, and thus, the undisputed evidence establishes that the IOI is the entire 8.8 mile

20

pipeline that runs from the international border to the current Nogales International

21

Wastewater Treatment Plant (“NIWTP”) site;

22

(II) Enter summary judgment in favor of the USIBWC on a discrete subpart of

23

Count 9 of the Amended Complaint – and find that there is no evidence that untreated

24

wastewater is released through cracks in the IOI; and

25

(III) Enter summary judgment in favor of the City of Nogales on the Second Claim

26

of the Third Party Complaint – based on the finding that there is no evidence that Nogales

27

is at fault for the discharges from the IOI; and therefore, the USIBWC cannot recover

28

from Nogales under the fault-based contribution theory of liability.

-2-

1

Magistrate Judge Ferraro issued the Report and Recommendation at issue on April

2

4, 2017, following briefing and oral argument, setting forth the relevant factual

3

background and analysis of Count 9 of the First Amended Complaint and Second Claim

4

for relief of the Third Party Complaint under the relevant provisions of the Clean Water

5

Act, 33 U.S.C. § 1251 et seq. − and the Arizona Pollutant Discharge Elimination System

6

(“AZPDES”) permit program a federally approved National Pollutant Discharge

7

Elimination System (“NPDES”) − administered by the Arizona Department of

8

Environmental Quality (ADEQ) and approved under the Equal Protection Agency

9

(“EPA”), 33 U.S.C. § 1342(a).

10

The parties were advised that, pursuant to Rule 72(b)(2), Fed.R.Civ.P., any party

11

may serve and file written objections within 14 days of being served with a copy of the

12

Report and Recommendation, and a party may respond to the other party’s objections

13

within 14 days therefrom.

14

Defendants USIBWC filed Defendants’ Objection to Report and Recommendation

15

on Plaintiff’s Motion for Partial Summary Judgment (Doc. 199) objecting to the

16

recommendation that the Court grant the Plaintiff State of Arizona’s request for a

17

determination that the IOI is the entire 8.8 mile pipeline that runs from the international

18

border to the current NIWTP, which, if granted, “would constitute a holding that the

19

USIBWC has an ownership interest in the entire pipeline.”

20

The City of Nogales’ Response to the USIBWC’s Objection to the Report and

21

Recommendation on Plaintiff’s Partial Motion for Summary Judgment (Doc. 200) filed

22

on May 2, 2017, opposes USIBWC’s objection and urges the Court to affirm the Report

23

and Recommendation in its entirely.

24

Also filed on May 2, 2017, in response in opposition to USIBWC’s objection, is

25

Plaintiff State’s Response to Defendant USIBWC’s Objections to Magistrate Judge

26

Ferraro’s Recommendation (Doc. 201), substantiating that the State has proven that (1)

27

discharges from the IOI into the Nogales Wash are ongoing; and (2) USIBWC is partial

28

owner of the IOI. The State argues that USIBWC offered no relevant and material facts

-3-

1

to dispute the findings that the State has satisfied both elements, and therefore, requests

2

the Court deny USIBWC’s objection and uphold the Report and Recommendation.

3

Upon review and consideration of all matters presented and an independent

4

review of the record herein, including the parties’ objections, the Court finds that the

5

findings of the Magistrate Judge on the City of Nogales’ Motion for Summary Judgment

6

Regarding Count II of Third Party Plaintiff USIBWC’s Third Party Claim; USIBWC’s

7

Motion for Partial Summary Judgment on Liability on Count 9 of the State’s Amended

8

Complaint; and Plaintiff State’s Motion for Partial Summary Judgment – Count 9, as set

9

forth in the Report and Recommendation, shall be accepted and adopted as the findings

10

of fact and conclusions of law of this Court. Accordingly,

11

IT IS HEREBY ORDERED that the Report and Recommendation of the

12

Magistrate Judge (Doc. 198) is ACCEPTED and ADOPTED as the findings of fact and

13

conclusions of law by this Court;

14

IT IS FURTHER ORDERED that The City of Nogales’ Motion for Summary

15

Judgment Regarding Count II of Third Party Plaintiff USIBWC’s Third Party Claim

16

(Doc. 166) is GRANTED; accordingly,

17

IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of

18

the City of Nogales on Claims 1 and 2 of the Third-Party Complaint and dismiss the

19

Third-Party Complaint (Doc. 5) with prejudice;

20

IT IS FURTHER ORDERED that USIBWC’s Motion for Partial Summary

21

Judgment on Liability on Count 9 of the State’s Amended Complaint (Doc. 168) is

22

GRANTED; notwithstanding the foregoing and in accordance with the Report and

23

Recommendation;

24
25

IT IS FURTHER ORDERED that Plaintiff State’s Motion for Partial Summary
Judgment – Count 9 (Doc. 170) is GRANTED.

26

IT IS FURTHER ORDERED – based on the issues of liability having been

27

established in favor of the Plaintiff State of Arizona on remaining Counts One, Three,

28

Five and Nine of the First Amended Complaint – that this matter is referred back to

-4-

1

Magistrate Judge Ferraro for pretrial proceedings in accordance with the provisions of 28

2

U.S.C. § 636(b)(1) and Local Rules LRCiv 72.1 and LRCiv 72.2 for purposes of

3

conducting a status conference to determine whether the parties seek to pursue a

4

resolution regarding the injunctive relief and civil penalties sought in the First

5

Amendment Complaint and any award of attorney’s fees and costs.

6
7

Dated this 20th day of September, 2017.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-