Pacific Coast Federation of Fishermen's Associations, et al., v. Glaser et al
Filing
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ORDER signed by District Judge Kimberly J. Mueller on 3/28/2017 DENYING 143 Motion to Amend the First Amended Complaint. (Michel, G.)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PACIFIC COAST FEDERATION OF
FISHERMEN’S ASSOCIATIONS, et al.,
Plaintiffs,
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ORDER
v.
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No. 2:11-cv-02980-KJM-CKD
DAVID MURILLO, Regional Director of
the United States Bureau of Reclamation,
UNITED STATES BUREAU OF
RECLAMATION, and SAN LUIS &
DELTA-MENDOTA WATER
AUTHORITY,
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Defendants.
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This matter is before the court on a motion to file a second amended complaint by
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the Pacific Coast Federation of Fishermen’s Associations, the California Sportfishing Protection
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Alliance, Friends of the River, San Francisco Crab Boat Owners Association, Inc., the Institute
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for Fisheries Resources, and Felix Smith (collectively, “plaintiffs”). Mot., ECF No. 143.
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Defendants David Murillo, the United States Bureau of Reclamation (“the Bureau”), and the San
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Luis & Delta-Mendota Water Authority (“the Authority”) oppose the motion. Opp’n, ECF No.
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147. Plaintiffs have replied. Reply, ECF No. 150. In this order, the court refers to Murillo and
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the Bureau collectively as “federal defendants.”
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The court held a hearing on November 4, 2016. Stephan C. Volker appeared for
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plaintiffs; Martin F. McDermott appeared for federal defendants; and Eric J. Buescher appeared
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for the Authority. For the following reasons, the court denies plaintiffs’ motion.
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I.
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BACKGROUND
A.
Procedural History
Plaintiffs commenced this action on November 9, 2011, alleging defendants
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violated the Clean Water Act, 33 U.S.C. § 1311(a) (“the Act”), by discharging pollutants into the
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waters of the United States without a National Pollutant Discharge Elimination System
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(“NPDES”) permit. Compl., ECF No. 1.
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On September 16, 2013, the court denied federal defendants’ and plaintiffs’ cross-
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motions for judgment on the pleadings. 2013 Order, ECF No. 70. The court converted the
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federal defendants’ Rule 12(c) motion for judgment on the pleadings to a Rule 12(b)(6) motion
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and dismissed plaintiffs’ complaint with leave to amend. Id. at 26. On October 7, 2013, plaintiffs
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filed their First Amended Complaint. First Am. Compl. (FAC), ECF No. 71. On November 15,
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2013, federal defendants and the Authority each filed a motion to dismiss. ECF Nos. 76, 77. On
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March 28, 2014, the court found plaintiffs had pled sufficient facts to state a claim for a violation
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of the Act because the Grasslands Bypass Project (“the Project”) operated by defendants collects
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and discharges a substantial quantity of contaminated groundwater from fallow land that may be
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unrelated to crop production. FAC ¶ (41)(c); 2014 Order at 7, ECF No. 87. The court therefore
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denied the motion as to that claim, but otherwise granted defendants’ motion and struck the
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balance of the allegations in the First Amended Complaint. 2014 Order at 8.
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On September 2, 2016, the court granted in part and denied in part cross-motions
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for summary judgment. 2016 Order, ECF No. 138. The court found a genuine dispute of
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material fact as to whether lands in the Charleston Drainage District, specifically the Vega Solar
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Project, had been retired from farming and were therefore no longer irrigated at the time plaintiffs
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filed the First Amended Complaint. Id. at 17. Accordingly, the court denied the parties’ cross-
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motions for summary judgment as to that District. Id. However, after evaluating plaintiffs’
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claims regarding the remaining water districts — i.e., Widren Water District, Broadview Water
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District, and Mercy Springs Water District — the court granted the balance of defendants’
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motions for summary judgment. Id. at 20.
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On October 5, 2016, plaintiffs filed the instant motion seeking leave to file a
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second amended complaint. ECF No. 143. Plaintiffs explain they aim to amend the complaint to
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(1) include the now known date for the cessation of irrigation on the Vega Solar Project site,
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(2) remove the claim that the San Luis Drain is a water of the United States, and (3) provide
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additional information about claims regarding the San Luis Drain’s contaminated discharge to
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Mud Slough that the court previously found to be too general. Id. at 2.
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B.
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Case Scheduling
The court convened an initial scheduling conference on July 31, 2014. ECF No.
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99. The court set a fact and expert discovery cut-off of July 31, 2015 and October 1, 2015,
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respectively, and an October 16, 2015 dispositive motion deadline. Scheduling Order, ECF No.
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100. The court’s scheduling order also provided that no further joinder of parties or amendments
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to pleadings would be permitted without leave of court and for good cause shown. Id. at 2.
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C.
Undisputed Facts
The court here relies on the parties’ undisputed facts at summary judgment to
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provide the relevant factual background. The Project drains the Grassland Drainage Area
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(“GDA”), which comprises 97,400 acres on the west side of the San Joaquin Valley. Statement
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of Undisputed Facts (SUF) No. 1, ECF No. 124-1. The Project is jointly administered by the
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Bureau and the Authority and does not have a current NPDES permit. SUF Nos. 13, 97. The
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Project conveys waters from the GDA through the Grassland Bypass Channel (“Bypass”) to the
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San Luis Drain and into the Mud Slough. SUF No. 8. Mud Slough is a wetland adjacent to
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national and state wildlife refuges, and is considered a water of the United States under the Act.
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SUF Nos. 9, 67. Mud Slough then empties into the San Joaquin River, which flows into the
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Sacramento and San Joaquin River Delta, and into the San Francisco Bay. Id. Within the GDA,
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at least 30,800 acres have subsurface drainage systems. SUF No. 17. Water within the
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subsurface drainage system also flows to the Bypass, and into the San Luis Drain, where it
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subsequently discharges into Mud Slough. SUF No. 18. The waters discharged into Mud Slough
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by the Project contain pollutants including selenium, boron, and salts. SUF No. 65. Prior to
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reaching the Bypass, water from the GDA goes through the San Joaquin River Improvement
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Project (“SJRIP”), and is reused on parcels of land within the SJRIP. Suppl. SUF No. 18, ECF
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No. 116-1. Most of the land the SJRIP covers is within the Mercy Springs Water District. Suppl.
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SUF Nos. 9, 18.
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Outside the SJRIP, the GDA includes land overseen by various local agencies,
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including the Charleston Drainage District and the Widren Water District. Suppl. SUF No. 1.
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The Vega Solar Project occupies part of the land within the boundaries of the Charleston
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Drainage District, which is a participating member in the Project. SUF Nos. 100–01. The solar
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installation in the Vega Solar Project was constructed after July 1, 2014. Falaschi Decl. ¶ 9, ECF
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No. 115-2. The land beneath the Vega Solar Project has a subsurface drainage system. SUF
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No. 105. Water from this system first enters an onsite sump, into which other nearby subsurface
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drainage systems also discharge, and then all the collected water flows into the Project, and is
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finally discharged into Mud Slough through the San Luis Drain. SUF Nos. 105–08. The land
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within the Widren Water District is retired from agricultural use and is no longer irrigated. SUF
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Nos. 114–15.
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II.
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LEGAL STANDARD
A party seeking leave to amend pleadings after the deadline specified in the
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scheduling order must first satisfy Federal Rule of Civil Procedure 16(b)’s “good cause” standard.
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Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-09 (9th Cir. 1992). Rule 16(b)(4)
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states that a “schedule may be modified only for good cause and with the judge’s consent.” This
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good cause evaluation “is not coextensive with an inquiry into the propriety of the amendment
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under . . . Rule 15.” Johnson, 975 F.2d at 609. The liberal amendment policy of Rule 15(a) is
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distinct from the good cause standard of Rule 16(b), which focuses primarily on the diligence of
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the moving party, id., and that party’s reasons for seeking modification, C.F. ex rel. Farnan v.
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Capistrano Unified Sch. Dist., 654 F.3d 975, 984 (9th Cir. 2011). District courts including this
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one have looked to a more detailed three-part test: a movant may establish good cause by
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showing (1) the movant diligently assisted the court to create a workable Rule 16 order; (2)
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circumstances beyond the movant’s control and anticipation prevented compliance with the order;
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and (3) after it became apparent a new schedule was needed, the movant promptly sought relief.
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See, e.g., Jackson v. Laureate, Inc., 186 F.R.D. 605, 608 (E.D. Cal. 1999); Kuschner v.
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Nationwide Credit, Inc., 256 F.R.D. 684 (E.D. Cal. 2009).
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If good cause exists, the party next must satisfy Rule 15(a). Johnson, 975 F.2d at
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608 (approving this order of operations). Federal Rule of Civil Procedure 15(a)(2) states “[t]he
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court should freely give leave [to amend a pleading] when justice so requires” and the Ninth
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Circuit has “stressed Rule 15’s policy of favoring amendments.” Ascon Props., Inc. v. Mobil Oil
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Co., 866 F.2d 1149, 1160 (9th Cir. 1989). “In exercising its discretion [regarding granting or
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denying leave to amend] ‘a court must be guided by the underlying purpose of Rule 15—to
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facilitate decision on the merits rather than on the pleadings or technicalities.’” DCD Programs,
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Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (quoting United States v. Webb, 655 F.2d 977,
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979 (9th Cir. 1981)). However, “the liberality in granting leave to amend is subject to several
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limitations. Ascon Props., 866 F.2d at 1160 (internal citations omitted). A court need not grant
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leave to amend where there is “undue delay,” “bad faith,” “undue prejudice to the opposing
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party,” or “futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Smith v.
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Pac. Prop. Dev. Co., 358 F.3d 1097, 1101 (9th Cir. 2004) (citing the Foman factors). Not all of
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the Foman factors merit equal weight. “[I]t is the consideration of prejudice to the opposing party
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that carries the greatest weight.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052
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(9th Cir. 2003). “The party opposing amendment bears the burden of showing prejudice.” DCD
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Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). “Absent prejudice, or a strong
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showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in
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favor of granting leave to amend.” Eminence Capital, 316 F.3d at 1052.
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Here, the original scheduling order foreclosed amendments without leave of court.
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Scheduling Order at 2 (“No further joinder of parties or amendments to pleadings is permitted
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without leave of court, good cause having been shown) (citing Fed. R. Civ. P. 16(b); Johnson,
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975 F.2d 604). As a result, the court will first consider the factors under Rule 16 and then the
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factors under Rule 15(a). See Jackson, 186 F.R.D. at 607.
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III.
DISCUSSION
A.
Nature of Notice Re Request to Amend
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As an initial matter, defendants argue the court should deny plaintiffs’ motion
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simply for failing to include a Rule 16 request to modify the scheduling order. Opp’n 10–11
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(citing Johnson, 975 F.2d at 608–09). Although the Ninth Circuit has suggested denial on these
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grounds may be appropriate, it has never established such a rigid rule. See Johnson, 975 F.2d at
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608–09 (citing Jauregui v. City of Glendale, 852 F.2d 1128, 1133–34 (9th Cir.1988); U.S.
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Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir.1985)).
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In Johnson, the Ninth Circuit affirmed a district court’s denial of Dairl Johnson’s
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motion to amend the complaint to add an additional party. Id. The Johnson court initially relied
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on the rule “suggested” by its previous cases that required a Rule 16 request to affirm the district
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court ruling. However, the court continued that “the result would not change if Johnson’s motion
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to amend the complaint were treated as a de facto motion to amend the scheduling order rather
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than a motion to join a party after the binding cut-off date for the motion had passed.” Id. at 609.
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In the former instance, the court explained, Johnson would need to show “good cause” under Rule
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16; in the latter, Johnson would need to establish “extraordinary circumstances” under the terms
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of the initial scheduling order. Id. After concluding that Johnson failed to make an adequate
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showing under either standard, the court held that the district court did not abuse its discretion
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when it denied Johnson’s motion. Id. at 609–10.
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As Johnson shows, the court may consider a motion to amend under either the
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“good cause” standard under Rule 16, for which Ninth Circuit precedent “suggests” a Rule 16
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request may be necessary, or under the terms of the scheduling order itself. In this case, the
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underlying scheduling order requires the movant to show good cause for the amendment. See
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ECF No. 100. As a result, whether plaintiffs’ motion is construed as a de facto motion to amend
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the scheduling order or instead as a motion to amend the complaint after the cut-off date is
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irrelevant; in either case, plaintiffs must show “good cause.” Thus, the court declines to deny
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plaintiffs’ motion on the grounds that plaintiffs failed to make an express Rule 16 request and
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instead determines whether plaintiffs have sufficiently established good cause to amend the
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complaint. See Atwell v. City of Surprise, 440 F. App’x 585, 586 (9th Cir. 2011) (even where
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court treats motion to amend as a de facto motion to amend the scheduling order, movant must
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show good cause).
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B.
Rule 16
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1.
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As noted above, plaintiffs’ motion seeks leave to file an amended complaint that
Proposed Amendments and Arguments
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makes three changes to the operative complaint. Mot. ECF No. 143. First, plaintiffs aim to
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include the date for the cessation of irrigation on the Vega Solar Project site; the proposed second
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amended complaint alleges that irrigated agriculture terminated “on or before July 1, 2014.”
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Proposed Second Am. Compl. (PSAC) ¶ 42, ECF No. 143-2. Second, plaintiffs aim to remove
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the claim that the San Luis Drain is a water of the United States. See, e.g., PSAC ¶ 23. Third,
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plaintiffs propose adding information about claims regarding the San Luis Drain’s contaminated
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discharge to Mud Slough to address the court’s previous finding that the operative pleadings are
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too general. The proposed second amended complaint now includes allegations that address how
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defendants’ contaminated groundwater is transported between the Grassland Bypass Channel and
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Mud Slough, PSAC ¶ 25, as well as allegations identifying parcels of non-irrigated land whose
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contaminated water is collected by the Project, PSAC ¶ 42, and deposits of sediment in the San
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Luis Drain that pollute the Project’s discharges, PSAC ¶ 43. Finally, although plaintiffs do not
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discuss it in their motion, the court notes the proposed amended complaint includes a new
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footnote, PSAC ¶ 40 n.6, that sets forth plaintiffs’ interpretation of “entirely,” a term the court has
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repeatedly addressed. See 2013 Order at 7–8, 17–21; 2014 Order at 6–7; 2016 Order at 16.
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Although plaintiffs do not explicitly address whether good cause exists to permit
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amendment to the complaint, they do generally support their proposed changes on the grounds
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that the changes “eliminate or narrow the issues framed for trial.” Mot. 5. In addressing each
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proposed change, plaintiffs first explain they did not know about the covenants against irrigation
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at the Vega Solar Project site until they were served with declarations attached to defendants’
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summary judgment motions, which were filed on October 16, 2015. Mot. 5; Volker Decl. ¶ 2,
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ECF No. 143; Bureau Mot. Summ. J., ECF No. 109; Authority Mot. Summ. J., ECF No. 111.
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Second, plaintiffs explain removing the claim that the San Luis Drain is a water of the United
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States simplifies the issues for trial. Mot. 5. Third, plaintiffs explain their elaboration as to the
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discharges to Mud Slough from the San Luis Drain addresses claims the court deemed too
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“general.” Id.
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In response, defendants argue plaintiffs seek to improperly expand the issues for
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trial while requesting a “second bite of the apple” to re-litigate claims the court already addressed.
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Opp’n 5. Defendants argue plaintiffs’ amendments are untimely given the advanced stage of
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litigation. Id. Specifically addressing the proposed changes, defendants argue plaintiffs’ first
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proposed change attempts to revive a dispute plaintiffs could have alerted the court to at the
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summary judgment stage. Id. at 13. Defendants next argue plaintiffs’ proposed second change
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can be accomplished by stipulation and does not justify amending the pleadings. Id. As to the
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third change, defendants argue plaintiffs necessarily fail to establish their own diligence when
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they point to the court’s prior summary judgment order as the basis for their proposed amendment
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here. Id. at 14. Defendants conclude by arguing amendments to the complaint at this stage
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would cause substantial prejudice by undermining defendants’ right to rely on the court’s
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summary judgement ruling and would risk the re-opening of discovery and additional dispositive
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motions. Id. at 14, 16.
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2.
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The court finds, at the outset, plaintiffs have failed to establish good cause for their
Analysis
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first and second proposed amendments. As plaintiffs effectively concede in their reply, the first
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proposed change tracks this court’s order on summary judgement virtually verbatim. Reply 6
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(citing 2016 Order). In that order, the court found there existed “a genuine dispute whether the
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[Vega Solar Project] land was irrigated prior to” July 2014. 2016 Order at 17. Plaintiffs may
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address that dispute of fact at trial without the amendment. As to the second proposed change,
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the matter might be handled by a stipulation of the parties. See Reply 5–6 (agreeing “whether the
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San Luis Drain is a water of the United States is immaterial to the outcome of this case”); Opp’n
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9 n.7 (“Whether the San Luis Drain is or is not a ‘water of the United States’ is not material to the
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Court's rulings on the scope of the irrigated agriculture exemption in this case.”). At hearing, the
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parties appeared willing to consider a stipulation, although the Authority expressed concerns
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about plaintiffs’ attempting to expand the scope of issues for trial. If the parties are unable to
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reach a stipulation, nothing stands in the way of plaintiffs’ dismissing a claim before or declining
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to prove up an allegation at trial. In any event, plaintiffs have failed to establish good cause as to
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either of their first two proposed amendments.
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Plaintiffs also have not established good cause for their third proposed amendment
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for two reasons. First, plaintiffs’ argument that the amendment “merely seeks to clarify” other
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allegations in the operative complaint, by itself, is insufficient to establish good cause. Reply 6.
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Plaintiffs do not point to any new facts that would support adding allegations this close to trial.
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Indeed, the proposed allegations largely track the arguments plaintiffs made before the court at
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the summary judgement stage. Compare 2016 Order at 13 (discussing plaintiffs’ theories of (1)
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discharges of water from “land that is used for public infrastructure, businesses, and residences,
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among other uses,” (2) discharge of stormwater runoff, and (3) seepage into the San Luis Drain
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and the sediment contained therein) with PSAC ¶¶ 42–43 (proposing inclusion of allegations
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regarding non-irrigated lands adjacent to the San Luis Drain and elsewhere situated within the
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Grassland Drainage Area and of allegations regarding deposits of sediment in the San Luis
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Drain). As a result, plaintiffs have not justified making these changes so close to trial.
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Second, and of greater concern at this stage, plaintiffs’ proposed changes attempt
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to relitigate issues the court has already decided. See Reply 6–7. In its prior order, the court
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struck plaintiffs’ three theories as falling outside the scope of the operative complaint. 2016
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Order at 13–14. The court explained that even if these theories were not stricken, they would not
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survive a motion for summary judgment. 2016 Order at 14 n.1. As a result, although the court
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denied defendants’ motion for summary judgment as to the Vega Solar Project, the court granted
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the balance of defendants’ motions for summary judgment. Id. at 19–20. In seeking to amend the
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complaint now, plaintiffs challenge the court’s conclusion that the allegations fell outside the
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portions of the complaint operative at the time summary judgment was decided, as plaintiffs
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assert their proposed changes are “entirely consistent” with the first amended complaint. Reply 6;
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see also Joint Statement 6–7, ECF No. 146 (“Plaintiffs respectfully disagree with the Court’s
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rulings that only discharges from the Vega Solar Project might potentially require an NPDES
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permit.”). That plaintiffs raise this disagreement through a motion to amend, having not sought
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reconsideration, further supports the conclusion that plaintiffs have not established good cause to
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grant their motion.
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Because plaintiffs have failed to show good cause to amend the complaint, the
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court need not proceed to consider the Rule 15 factors.
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IV.
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CONCLUSION
For reasons set forth above, the court DENIES plaintiffs’ motion for leave to
amend the first amended complaint.
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This order resolves ECF No. 143.
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IT IS SO ORDERED.
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DATED: March 28, 2017.
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UNITED STATES DISTRICT JUDGE
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