Harmon v. United States of America

Filing 27

MEMORANDUM DECISION AND ORDER - IT IS ORDERED: 1. Plaintiffs Motion for Spoliation Finding (Dkt. 19 ) is GRANTED IN PART insofar as it seeks a permissive adverse-inference jury instruction about the contents of this evidence and DENIED IN PART insof ar as it seeks a more detailed jury instruction with a list of mandatory inferences. 2. The Governments Motion for Summary Judgment (Dkt. 13 ) is GRANTED IN PART and DENIED IN PART, in accordance with the findings set forth above. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

DOUGLAS G. HARMON,
Case No. 4:15-cv-00173-BLW
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
THE UNITED STATES OF AMERICA,
acting by and through BUREAU OF
INDIAN AFFAIRS,
Defendant.

INTRODUCTION
Pending before the Court is Defendant United States of America’s Motion for
Summary Judgment (Dkt. 13) and Plaintiff’s Motion for Spoliation Sanctions (Dkt. 24).
The Court heard oral argument on February 3, 2017 and took the motions under
advisement. For the reasons expressed below, the Court will grant in part and deny in part
both motions.
BACKGROUND
Plaintiff Doug Harmon filed this action against the United States of America and
the Bureau of Indian Affairs (“BIA”) in connection with BIA’s operation of the Fort Hall
Irrigation Project (“FHIP”). Harmon alleges that BIA failed to properly maintain and
administer the water delivery systems on the FHIP, resulting in multiple flooding events

MEMORANDUM DECISION AND ORDER - 1

in 2012 that damaged crops on a 115-acre parcel where he farmed potatoes.
The FHIP provides irrigation water to the Fort Hall Indian Reservation through the
use of storage reservoirs, diversion dams, canals, and ditches. Def. SOF ¶ 2, Dkt. 13-1.
FHIP ditches are divided into at least three categories: “lateral ditches” owned by BIA;
“service ditches” owned by BIA; and “farm ditches” owned by individuals. Def. SOF ¶ 3.
The structures at issue here include:





The “Main Canal,” a primary lateral which carries water to various
delivery points, including the Park Lateral.
The “Park Lateral,” a canal that provides water to several properties
and farm ditches adjacent to the Harmon property.
The “Yupe Ditch,” a farm ditch which extends off the Park Lateral
along the southern border of the Harmon farm and supplies water to
the Yupe and Lutz farms.
The “Jackson/Devinney Ditch,” a farm ditch which extends off the
Park Lateral to the southeast of the Harmon farm and supplies water
to the Jackson and Devinney farms.

Pl. SOF at 2–3, Def. SOF ¶ 3.
Day-to-day operations and maintenance of the FHIP is performed by BIA staff,
including Irrigation System Operators (“Ditchriders”) and Maintenance Workers, in
accordance with BIA regulations and an internal project manual (“O&M Manual”). Pl.
SOF at 7, Dkt. 16-1. Ditchriders unlock canal headgates when users are scheduled to
receive their water, control the water levels in canals, clean trash racks serving the park
lateral, log complaints from water users, and canvas the irrigation system for damages.
Pl. SOF at 11; Def. SOF ¶ 8. Ditchriders can place locks on headgates to prevent them
from being opened, or place collars on headgates to limit water flow. Pl. SOF at 10.
Maintenance workers perform necessary maintenance on the irrigation structures,
MEMORANDUM DECISION AND ORDER - 2

including weed-spraying and ditch-burning. FHIP O&M Guidelines pt. 1, Dkt. 13-5, at
51. BIA possesses rights-of-ways which allow the agency to gain access to project
infrastructure for maintenance purposes. Idaho Code Ann. § 42-1204.
Harmon alleges that his property was flooded on at least five separate occasions in
2012 due to the negligence of BIA: on July 4, August 6, August 20, September 25, and
September 26. Pl. SOF at 12–13; Def. SOF ¶ 14. On each occasion, Harmon contacted
BIA personnel, who responded to the complaints and attempted to identify the source of
the flooding. Pl. SOF at 13; Def. SOF at ¶¶ 12–13. The Harmons had also complained to
BIA personnel about flooding on their property prior to 2012. Pl. SOF at 11; McKean
Dep. 40:12–40:22, Dkt. 16-17.
The flooding events that occurred on July 4, 2012 and August 6, 2012 came from
the Ellsworth property located on the east side of the Harmon property. D. Harmon Dep.
36:24–38:14, Dkt. 16-3; G. Harmon Dep. 18:20–21:5, Dkt. 16-4; Pl. Mot. Summ. J. Ex. 6
at 8, Dkt. 13-8. Gary Ellsworth had taken over the farm when his father passed away and
experienced problems learning how to properly flood irrigate the fields. Def. SOF ¶ 16.
Due to the nature and slope of his land, water from the Ellsworth property would enter
Plaintiff’s fields when Ellsworth failed to properly monitor his irrigation. Def. SOF ¶ 16.
The flooding that occurred on August 20 and September 26 was caused by a headgate
that had been opened too wide, allowing excess water to wash out part of the
Jackson/Devinney ditch and run into Plaintiff’s field. Def. SOF at 14; Pl. SOF ¶¶ 18, 19.
Finally, the September 25 flooding was caused by a gopher hole in the Yupe ditch. Def.

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SOF at 15. The Yupe ditch was filled with grass and in generally poor condition at that
time, but BIA performed maintenance work on the ditch after the September 25 flooding
incident. Pl. SOF at 13.
On or about June 30, 2014, Plaintiff filed an administrative tort claim for damages,
as required by 28 USC § 2675, alleging that these flooding incidents were a direct and
proximate cause of BIA’s negligent failure to properly monitor water flow, lock and
collar headgates, and keep surface ditches maintained. The government denied the claim
on December 5, 2014, and Harmon filed his complaint in the instant action on May 21,
2015.
ANALYSIS
1.

Motion for Spoliation Sanctions
A.

Legal Standard

Spoliation is defined as the “destruction or significant alteration of evidence, or
the failure to preserve property for another’s use as evidence, in pending or future
litigation” once the duty to do so has been triggered. Kearney v. Foldy & Lardner, LLP,
590 F.3d 638, 649 (9th Cir. 2009) (internal quotation and citation omitted). A party
seeking sanctions for spoliation bears the burden of establishing that the opposing party
(1) destroyed relevant evidence and (2) had an obligation to preserve the evidence when
it was destroyed or altered. Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir.
2015). An obligation to preserve attaches when a party knows or should reasonably know
that the evidence is potentially relevant to litigation. See United States v. Kitsap

MEMORANDUM DECISION AND ORDER - 4

Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). Once such a showing is made, the
district court has inherent discretionary authority to levy sanctions. Glover v. BIC Corp.,
6 F.3d 1318, 1329 (9th Cir. 1993).
Spoliation sanctions may include dismissal of claims, exclusion of evidence, or an
instruction that the jury may or must presume that the destroyed evidence, if produced,
would have been adverse to the party who destroyed it. See Unigard Sec. Ins. Co. v.
Lakewood, 982 F.2d 363, 369 (9th Cir. 1992). When considering the appropriate
sanction, courts consider the: “(1) willfulness or bad faith of the party responsible for loss
of evidence; (2) degree of prejudice sustained by opposing party; and (3) what is required
to cure prejudice.” Miller v. Four Winds Int’l Corp., 827 F. Supp. 2d 1175, 1181 (D.
Idaho 2011).
B.

Existence of Spoliation

Harmon seeks spoliation sanctions for the government’s inability to produce
certain maintenance logs and other records maintained by BIA related to this matter.
These records include: (i) MAXIMO records; and (ii) daily logbooks of Maintenance
Supervisor Steven Guardipee, Watermaster Clifford Buckskin, Ditchrider Jesse
Rodriguez, and Ditchrider Nick Broncho. The Court begins by addressing whether
Harmon has sufficiently demonstrated spoliation of these records, then moves to a
determination of the appropriate sanction.
(i)

MAXIMO Records

Plaintiff argues that the government’s failure to produce MAXIMO records of

MEMORANDUM DECISION AND ORDER - 5

BIA’s maintenance work on ditches adjacent to the Harmon parcel constitutes spoliation.
MAXIMO is a commercial software used to track maintenance operations for all DOI
agencies, including “scheduling, preventive maintenance, work orders, labor and expense
tracking, procurement and reporting.” FHIP O&M Guidelines pt. 1, at 16, Dkt. 13-5.
“[U]se of MAXIMO is mandated for all agencies by [Department of Interior] policy.” Id.
at 16. Accordingly, the FHIP’s O&M Guidelines require entry of maintenance problems
and repairs into the MAXIMO system. FHIP O&M Guidelines pt. 2, at 4–7, Dkt. 13-6.
The FHIP Maintenance Supervisor, Steven Guardipee, has primary responsibility for
ensuring that work orders are entered into MAXIMO. FHIP O&M Guidelines pt. 1 at 48,
55. Each year, FHIP personnel are also required to compile an annual MAXIMO
maintenance report with “1) descriptions of maintenance activities; and 2) cost estimates
for each item, broken down by personnel, personnel costs, equipment and supplies.”
FHIP O&M Guidelines pt. 2, at 6.
BIA employees acknowledged that they performed maintenance work on the Yupe
ditch before and after the flooding events in 2012. See, e.g., Bollinger Dep. 17:4–16,
25:8–25:14, 30:18–30:19, 223:2–223:3, Dkt. 16-11; Buckskin Dep. 108:23–109:3, Dkt.
16-15. However, the government was unable to find any MAXIMO records of such work.
Steven Guardipee acknowledged that such FHIP maintenance projects should have been
entered into MAXIMO but could not recall whether the MAXIMO records were ever
created. Guardipee Dep. at 43:22–44:5; 49:14–50:6, Dkt. 16-20. He explained that
“sometimes stuff got overlooked.” Id. at 43:1–44:5, 49:5–9. On this basis, the Court

MEMORANDUM DECISION AND ORDER - 6

concludes that BIA simply neglected to document certain FHIP maintenance and repair
work in MAXIMO. While there is no evidence that the sough-after evidence was lost or
destroyed, this failure to create MAXIMO entries nonetheless violated BIA’s clear duty
under agency policy.
The government argues that even if BIA was obligated to create these MAXIMO
records, the spoliation doctrine does not apply to evidence that never existed. The failure
to create evidence, without more, would not ordinarily warrant a spoliation sanction. See,
e.g., Lamon v. Adams, No. 1:09-cv-00205, 2015 WL 1879606, at *3 (E.D. Cal. Apr. 22,
2015) (“Nor can a Court issue sanctions based on a party’s failure to create evidence”).
However, the prophylactic and punitive justifications underlying the spoliation doctrine
may justify sanctions where a party fails to create evidence in violation of a statutory,
regulatory, or internal policy obligation. See, e.g., Ramirez v. Pride Dev. & Const., 244
F.R.D. 162, 164 (E.D.N.Y. 2007) (imposing an adverse inference instruction as a penalty
for the defendant’s failure to create records pursuant to New York Labor Law); Smith v.
United States, 128 F. Supp. 2d 1227, 1233 (E.D. Ark. 2000) (imposing an adverse
inference instruction as a penalty for physician’s failure to dictate post-surgical notes, in
violation of hospital procedure).
The question remains, however, whether the violation of a records-retention law
may constitute a breach of duty sufficient to impose a spoliation sanction. Several circuit
courts of appeals have answered this question in the affirmative, where: (1) the movant
was a member of a class that the records-retention law sought to protect and (2) imposing

MEMORANDUM DECISION AND ORDER - 7

a sanction would further the law’s purpose. See, e.g., Talavera v. Shah, 638 F.3d 303, 311
(D.C. Cir. 2011) (violation of OPM and EEOC document-retention regulations pertaining
to Title VII complains warranted a spoliation sanction); Byrnie v. Town of Cromwell, Bd.
of Educ., 243 F.3d 93, 108–09 (2d Cir. 2001) (“[W]here, as here, a party has violated an
EEOC record-retention regulation, a violation of that regulation can amount to a breach
of duty necessary to justify a spoliation inference in an employment discrimination
action.”); Latimore v. Citibank Fed. Sav. Bank, 151 F.3d 712, 716 (7th Cir. 1998) (“The
violation of a record[-]retention regulation creates a presumption that the missing record
contained evidence adverse to the violator.”); Favors v. Fisher, 13 F.3d 1235, 1239 (8th
Cir. 1994) (plaintiff “was entitled to the benefit of a presumption that the destroyed
documents would have bolstered her case” where employer violated record retention
regulation); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1419 (10th Cir. 1987) (plaintiff
was entitled to a presumption that documents destroyed in violation of Title VII
recordkeeping requirements would have bolstered her case); Matteo v. Kohl’s Dep’t
Stores, Inc., 533 F. App'x 1, 3 (2d Cir. 2013) (upholding district court’s imposition of
sanctions for Department Store’s failure to preserve video footage in violation of internal
policies). But see Lamon v. Adams, No. 1:09-CV-00205-LJO, 2015 WL 1879606, at *2
(E.D. Cal. Apr. 22, 2015) (violation of a state prison record-retention regulation did not
provide a basis for a court’s imposition of spoliation sanctions).
The piecemeal enactment and amendment of the Federal Records Act make it
difficult to identify its overarching “purpose.” The Federal Records Act is a compilation

MEMORANDUM DECISION AND ORDER - 8

of statutes that collectively set forth federal agencies’ records creation, management, and
disposal duties. See 44 U.S.C. §§ 2101 et seq., 2901 et seq., 3101 et seq., 3301 et seq.1
These provisions require the head of each federal agency to “make and preserve records
containing adequate and proper documentation of the organization, functions, policies,
decisions, procedures, and essential transactions of the agency[.]” 44 U.S.C. § 3101. In
addition, the Archivist of the United States is to “provide guidance and assistance to
Federal agencies . . . to ensur[e] adequate and proper documentation of the policies and
transactions of the Federal Government and ensur[e] proper records disposition.” 44
U.S.C. § 2904(a).
The Supreme Court, in Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 149 (1980), concluded that the legislative history of the Act “reveals that
[its] purpose was not to benefit private parties, but solely to benefit the agencies
themselves and the Federal Government as a whole.” The Court cited the Senate Report
for the 1950 Federal Records Act, which stated that “records come into existence, or
should do so, not . . . to satisfy the archival needs of this and future generations, but first
of all to serve the administrative and executive purposes of the organization that creates
them.” Id. (citing S. Rep. No. 2140, 81st Cong., 2d Sess., 4 (1950). However, as the D.C.

1

The “Federal Records Act” is composed of the Records Disposal Act of 1943, Records Disposal
Act, Pub. L. No. 78-115, 57 Stat. 380 (1943) (codified as amended at 44 U.S.C. §§3301–3314 (2006)),
the Federal Records Act of 1950, Federal Records Act, Pub. L. No. 81-754, § 6, 64 Stat. 578 (1950)
(codified as amended at chapters 21, 25, 27, 29 and 31 of Title 44), and the Federal Records Management
Amendments of 1976, Pub. L. No. 94-575, 90 Stat. 2724 (1976) (codified as amended at 44 U.S.C.
§§2901–2907 (2006)).
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Circuit later noted, the Kissinger Court conducted only a limited legislative history
review to determine whether the particular plaintiffs at issue there could assert a private
right of action under those government records laws. Am. Friends Serv. Comm. v.
Webster, 720 F.2d 29, 53 (D.C. Cir. 1983). “Since Kissinger made its findings about
congressional intent in a different context and with a different standard, it would be
inappropriate to have them control here absent additional supporting analysis.” Id.
After a lengthy review of the text and legislative history of the Federal Records
Act, the D.C. Circuit in American Friends concluded “Congress intended, expected, and
positively desired . . . private parties whose rights may have been affected by government
actions to have access to the documentary history of the federal government.” 720 F.2d at
57. The court observed that the plain text of the Federal Records Act demonstrates a
balance among several broader, competing goals, including administrative efficiency and
the substantive need for federal records by public officials, scholars, historians, and
private individuals. For example, same purposes section of the FRA that speaks of
“efficient and effective records management” mentions “[a]ccurate and complete
documentation of the policies and transactions of the Federal Government.” 44 U.S.C.
§ 2902. Agency heads are directed to “make and preserve records containing adequate
and proper documentation of the organization, functions, policies, decisions, procedures,
and essential transactions of the agency and designed to furnish the information
necessary to protect the legal and financial rights of the Government and of persons
directly affected by the agency’s activities.” 44 U.S.C. § 3101 (emphasis added). Accord

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Armstrong v. Exec. Office of the President, 1 F.3d 1274, 1285, 1287 (D.C. Cir. 1993)
(observing “Congress’ evident concern with preserving a complete record of government
activity for historical and other uses”).
This Court agrees that the plain text and legislative history of the Federal Records
Act reveal a concern for the public’s interest in preservation of government records.
Moreover, Harmon’s interests are directly covered by the language of the Act, which
seeks to protect those “directly affected by an agency’s activities” and whose “legal and
financial rights” may be affected by the government’s failure to preserve a documentary
history of its undertakings. 44 U.S.C. § 3101.
Next, the Court must determine whether imposing an evidentiary sanction here
would further the law’s purpose or instead disrupt the Federal Records Act’s careful
balance between public rights and agency obligations. Only two cases appear to have
addressed the question of whether a Federal Records Act violation may support a
spoliation claim. See True the Vote, Inc. v. Internal Revenue Serv., No. CV 13-734, 2014
WL 4347197, at *5 (D.D.C. Aug. 7, 2014); Gerlich v. U.S. Dep’t of Justice, 828 F. Supp.
2d 284, 300–01 (D.D.C. 2011), aff’d in part, rev'd in part, 711 F.3d 161 (D.C. Cir. 2013).
In the first, Gelrich, the plaintiff sought spoliation sanctions for the government’s
destruction of records in violation of the FRA. 828 F. Supp. 2d at 284. The U.S. District
Court for the District of Columbia declined to apply a spoliation inference because the
records were disposed in conformance with agency policy. Id. However, the Court
reasoned that “[i]f a Department employee had destroyed agency materials in violation of

MEMORANDUM DECISION AND ORDER - 11

a records disposition schedule, that destruction would likely warrant a spoliation
inference.” Id.
Just three years later, the D.C. District Court appeared to reverse course. In True
the Vote, the plaintiff complained of the IRS’s failure to preserve documents lost during a
hard drive crash. 2014 WL 4347197, at *5. The court declined to apply a spoliation
sanction, reasoning that the Federal Records Act does not vest federal courts with
jurisdiction to entertain claims that a government agency has violated agency records
management policies and procedures. Id. (citing Kissinger, 445 U.S. at 147–148).
“Without the authority to make that determination in the first instance, it would be
inappropriate for the Court to predicate a finding of spoliation on a violation of the
Federal Records Act.” Id.
A spoliation sanction is a far cry from a direct suit to enforce FRA violations,
however. The plaintiff here does not seek to enjoin federal recordkeeping activity or
impose liability on a federal agency. Nor is this Court being asked to second-guess BIA’s
records-management guidelines, scrutinize agency policy judgments, or weigh
managerial and efficiency concerns. Harmon asks the Court only to lessen the prejudice
resulting from BIA’s haphazard record maintenance, actions which violated clearlyestablished agency policy. To ask plaintiff alone to shoulder the consequences of such a
violation would “place a premium on [the government’s] failure to keep proper records in
conformity with [its] statutory duty.” Anderson v. Mt. Clemens Pottery Co., 328 U.S.
680, 687 (1946). It is therefore within the inherent authority of this court, Chambers v.

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NASCO, Inc., 501 U.S. 32, 43 (1991), and consistent with the goals of the FRA, to
fashion an appropriate sanction.
(ii)

Daily Logbooks

Harmon also complains of the government’s failure to produce the 2012 daily
logbooks of Maintenance Supervisor Steven Guardipee, Watermaster Clifford Buckskin,
and Ditchriders Jesse Rodriguez and Nick Broncho. The logbooks of Buckskin and
Guardipee were eventually found and therefore not subject to the spoliation doctrine.
Beck Decl. Ex. A, Dkt. 19-4; Beck Decl. Ex. C, at 6, Dkt. 19-6. However, the
government’s inability to produce the logbooks of Ditchriders Rodriguez and Broncho
may constitute spoliation.
The FHIP O&M Guidelines require ditchriders to use daily logbooks to record
maintenance issues, headgate openings or changes, complaints from water users,
emergencies, and other pertinent events. Furthermore, the manual states that “[d]iaries
from the previous year shall be filed in the Irrigation Project Office.” FHIP O&M
Guidelines pt. 2, at 5. Both Rodriguez and Broncho acknowledged that they had kept
logbooks in 2012, in accordance with BIA policy. However, both appear to have been
lost since that time.
Jesse Rodriguez testified that he referenced his logbook in July 2013 when
preparing a report in response to Harmon’s tort claim notice. Rodriguez Dep. 32:20–
33:21, Dkt. 19-10. When Plaintiff sought discovery of the logbook, however, Rodriguez
was unable to find it. Id. 34:13–21. The logbook appears to have been lost after BIA’s

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duty to preserve relevant evidence arose. A formal litigation hold was not issued in this
case until June 2015, when BIA was served with the summons and complaint in this
action. However, BIA was on notice of Harmon’s intent to pursue litigation in 2013 when
it was served with his tort claim notice. Bollinger Dep. 148:15–149:14. BIA was also
undoubtedly aware that ditchrider logbooks were potentially relevant to such litigation, as
evidenced by the fact that Rodriguez referred to his logbook to prepare a response
statement to the tort claim notice. Accordingly, Harmon has established the elements of
spoliation as to the Rodriguez logbook.
There is little evidence regarding the date and circumstances under which
Broncho’s logbook was lost or destroyed. Nick Broncho testified that that he kept a
logbook in 2012 and turned it over to Brandon McKean at the end of the season. Broncho
Dep. 29:10–15, 158:19–23, Dkt. 16-8. Neither Broncho nor his supervisors could
provide any information about the last date on which the logbook was seen, or whether
the logbook was lost after the agency was on notice of Harmon’s intent to pursue
litigation. Nonetheless, BIA employees were required by agency regulation to keep and
file Broncho’s 2012 logbook in the Irrigation Project Office, regardless of whether the
logbook was potentially relevant to litigation. For the reasons outlined in Section 1(B)(i)
above, the violation of this duty to preserve is sufficient to constitute spoliation.
C.

Appropriate Sanction

Having found that BIA engaged in spoliation of the MAXIMO records and
Rodriguez and Broncho logbooks, the Court must determine the appropriate sanction by

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considering: “(1) willfulness or bad faith of the party responsible for loss of evidence; (2)
degree of prejudice sustained by opposing party; and (3) what is required to cure
prejudice.” Miller v. Four Winds Int'l Corp., 827 F. Supp. 2d 1175, 1181 (D. Idaho
2011).
The Court finds no evidence that the government engaged in intentional or bad
faith spoliation. However, BIA’s recordkeeping efforts were rather slipshod, despite
knowledge of the obligations to create and maintain MAXIMO records and ditchrider
logs. The spoliation here was at least negligent.
Furthermore, BIA’s failure to maintain adequate records has prejudiced Plaintiff’s
ability to prove his case. There is no way to determine what the spoliated evidence would
have revealed. However, it is likely that the MAXIMO records and logbooks would have
been relevant to a contested issue here—namely, whether BIA assumed a duty to regulate
water use and shut off flows to poorly-maintained or managed ditches. These documents
would likely have contained records of other flooding incidents, of the installation of
locks and collars, and of complaints alerting BIA to problems on the ditches at issue.
Furthermore, other available evidence is not an adequate substitute for such lost records.
The available logbooks provide an incomplete record of relevant events. Furthermore,
FHIP personnel have been unable recall with any certainty what work was performed in
2012 or the years preceding the flooding incidents at issue here.
Under the circumstances, the Court concludes that the most appropriate remedy is
a permissive adverse inference instruction—that the jury may infer that the missing

MEMORANDUM DECISION AND ORDER - 15

evidence would have been favorable to Harmon’s case. This type of sanction is
considered to be among the least severe, as the jury is always at liberty to draw such
inferences from circumstantial evidence. See Mali v. Fed. Ins. Co., 720 F.3d 387, 393 (2d
Cir. 2013) (finding that a permissive inference instruction is not a sanction but “simply an
explanation to the jury of its fact-finding powers.”). The Court therefore grants plaintiff’s
motion, insofar as it seeks a permissive instruction, but reserves judgment on the
appropriate wording of such an instruction until trial.
Plaintiff also asks the Court to make a series of detailed inferences about the
contents of the lost evidence for purposes of summary judgment. The Court need not
address the reasonableness of such inferences, as they would not alter the Court’s
determination on the government’s Motion for Summary Judgment. As explained in
detail below, Harmon failed to establish any reliance on BIA’s alleged “assumption of
duty” to maintain private ditches. No inference about the scope of BIA’s maintenance
work would change that conclusion. The existing evidence before the court is sufficient,
without any inferences, to deny the motion in all other respects. Furthermore, in ruling on
a motion for summary judgment, the Court must already accept as true plaintiff’s
plausible account of the facts and draw “all justifiable inferences” in the non-movant’s
favor. Suzuki Motor Corp. v. Consumers Union of U.S., Inc., 330 F.3d 1110, 1140 (9th
Cir. 2003). However, to the extent that Harmon seeks a jury instruction at trial
encompassing this detailed list of inferences, the motion is denied.

MEMORANDUM DECISION AND ORDER - 16

2.

Motion for Summary Judgment
A.

Legal Standard for Summary Judgment

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “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). One of the principal purposes of the
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327. “[T]he mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). There must be a genuine dispute as to any material fact – a
fact “that may affect the outcome of the case.” Id. at 248.
The evidence must be viewed in the light most favorable to the non-moving party,
and the Court must not make credibility findings. Id. at 255. Direct testimony of the
non-movant must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d
1152, 1159 (9th Cir. 1999). On the other hand, the Court is not required to adopt
unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d
1205, 1208 (9th Cir. 1988).
The moving party bears the initial burden of demonstrating the absence of a

MEMORANDUM DECISION AND ORDER - 17

genuine dispute as to material fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.
2001) (en banc). To carry this burden, the moving party need not introduce any
affirmative evidence (such as affidavits or deposition excerpts) but may simply point out
the absence of evidence to support the nonmoving party’s case. Fairbank v. Wunderman
Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). This shifts the burden to the nonmoving party to explain how the facts are in controversy creating “a genuine issue for
trial.” British Motor Car Distrib. Ltd. v. San Francisco Auto. Indus. Welfare Fund, 882
F.2d 371, 374 (9th Cir. 1989).
The non-moving party must go beyond the pleadings and show “by her [ ]
affidavits, or by the depositions, answers to interrogatories, or admissions on file” that a
genuine dispute of material fact exists. Celotex, 477 U.S. at 324. However, the Court is
“not required to comb through the record to find some reason to deny a motion for
summary judgment.” Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029
(9th Cir. 2001) (quotation omitted). Instead, the “party opposing summary judgment
must direct [the Court’s] attention to specific triable facts.” Southern California Gas Co.
v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003).
B.

Analysis

Plaintiff seeks recovery on a theory of negligence, pursuant to the Federal Tort
Claims Act (“FTCA”). The FTCA waives the United States’ immunity and provides
governmental liability for tort claims “in the same manner and to the same extent as a
private individual under like circumstances . . . .” Nurse v. United States, 226 F.3d 996,

MEMORANDUM DECISION AND ORDER - 18

1000 (9th Cir. 2000) (quoting 28 U.S.C. § 2674). Whether an actionable tort exists is
examined “under the law of the state where the act or omission occurred.” Love v. United
States, 915 F.2d 1242, 1245 (9th Cir. 1989).
Under Idaho law, a cause of action for common-law negligence has four elements:
“(1) a duty, recognized by law, requiring the defendant to conform to a certain standard
of conduct; (2) a breach of that duty; (3) a causal connection between the defendant's
conduct and the resulting injury; and (4) actual loss or damage.” Nation v. State, Dept. of
Corr., 158 P.3d 953, 965 (Idaho 2007) (internal citation omitted). Here, the essence of
Plaintiff’s negligence claim is (1) that BIA had a duty to regulate water flow and
maintain private ditches on the FHIP, (2) that Defendant breached its duty by failing to
lock and collar headgates and keep surface ditches maintained, and (3) that this breach
was both an actual and proximate cause of (4) damage to Plaintiff’s crops.
The government argues that summary judgment is appropriate here because BIA
did not owe Harmon a duty to regulate water use or maintain private ditches, and even if
it did, Plaintiff’s injuries were caused by the acts and omissions of third parties.
(i)

Duty

Plaintiff argues that BIA had a duty to “implement procedures and protocol to . . .
regulate . . . water on the FHIP” and to “properly maintain the water delivery system”
adjacent to the Harmon plot, under the following theories: (1) negligence per se, based on
a violation of BIA regulations; (2) a voluntary assumption of duty. The Court addresses
each theory in turn.

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(a)

Negligence Per Se

“[I]n Idaho, it is well established that statutes and administrative regulations may
define the applicable standard of care owed, and that violations of such statutes and
regulations may constitute negligence per se.” Sanchez v. Galey, 733 P.2d 1234, 1242
(1986). “In order to replace a common law duty of care with a duty of care from a statute
or regulation, the following elements must be met: (1) the statute or regulation must
clearly define the required standard of conduct; (2) the statute or regulation must have
been intended to prevent the type of harm the defendant's act or omission caused; (3) the
plaintiff must be a member of the class of persons the statute or regulation was designed
to protect; and (4) the violation must have been the proximate cause of the injury.”
O’Guin v. Bingham County, 122 P.3d 308, 311 (2005).
Harmon asserts that BIA had a duty to follow its own regulations governing the
Fort Hall Irrigation Project, the violation of which supports it claim of negligence.
Specifically, Harmon points to 25 C.F.R. sections 171.110, 171.300, 171.400, and
171.130, which provide answers to questions such as “How does the BIA administer its
irrigation facilities?” and “Does BIA restrict my water use?”
This theory of duty fails for two reasons. First, the provisions cited by Harmon are
permissive in tone, and do not appear to impose any mandatory obligations on the BIA.
See, e.g., 25 C.F.R. § 171.110 (“Such enforcement can include refusal or termination of
irrigation services to you.”); 25 C.F.R. § 171 .300 (“We may withhold services if you use
water for any other purpose.”); 25 C.F.R. § 171.400 (BIA “may build[,]” “may charge[,]”

MEMORANDUM DECISION AND ORDER - 20

“may require maintenance[,]” and “may remove it or perform the necessary
maintenance”) (emphasis added).
Second, even assuming these provisions compelled BIA to undertake certain
activities, the violation of a federal regulation will not, by itself, support a tort claim
under the FTCA. Love v. United States, 60 F.3d 642, 644 (9th Cir. 1995). The United
States is liable under the FTCA “in the same manner and to the same extent as a private
individual under like circumstances.” 28 U.S.C. § 2674 (1976). Thus, Harmon must show
that BIA’s actions, if committed by a private party, would constitute a tort in Idaho. Love,
60 F.3d at 644. Harmon has not done so. To the extent that the cited regulations impose
any duty on BIA, that duty does not extend to private individuals in like circumstances.
Nor does Idaho law impose any comparable oversight and management obligations on
private individuals.2 Thus, BIA’s alleged failure to adhere to the above-cited federal
regulations will not, by itself, support an FTCA claim.

2

The only applicable tort duty imposed on irrigation ditch owners is found in Idaho Code § 421204, which provides that “[t]he owners or constructors of ditches, canals, works or other aqueducts . . .
whether the said ditches, canals, works or aqueducts be upon the lands owned or claimed by them, or
upon other lands, must carefully keep and maintain the same . . . in good repair and condition, so as not to
damage or in any way injure the property or premises of others. . . .”
Under this provision, BIA owed a statutory duty to maintain canals for which it may be deemed
the “owner or constructor.” BIA owns the Main Canal and Park Lateral but does not own the Yupe and
Jackson/Devinney farm ditches, which were privately held. While BIA appears to have performed some
maintenance work on these private ditches, it’s unlikely that BIA falls under the definition of a
“constructor.” Even assuming it does, the Idaho Supreme Court held that once a constructor has turned
over a ditch to its owner, it has no further responsibility under I.C. § 42-1204. See Gates v. Pickett &
Nelson Const. Co., 432 P.2d 780, 790 (1967). Accordingly, Harmon does not appear to contend that BIA
violated a maintenance duty under Idaho Code § 42-1204.

(Continued)

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(b)

Voluntary Assumption of Duty

This brings us to Plaintiff’s argument that BIA voluntarily assumed a duty to
regulate water flow or perform maintenance on private farm ditches. Under the tort
doctrine of assumption of duty, or so-called “Good Samaritan rule,”3 “one [who]
voluntarily undertakes to perform an act, having no prior duty to do so, [assumes a] duty .
. . to perform the act in a non-negligent manner.” Featherston v. Allstate Ins. Co., 875
P.2d 937, 940 (Idaho 1994); (citing Bowling v. Jack B. Parson Cos., 793 P.2d 703, 705
(Idaho 1990)); see also Restatement (Second) of Torts §§ 323, 324A.4 “Although a
person can assume a duty to act on a particular occasion, the duty is limited to the
discrete episode in which the aid is rendered. . . . [P]ast voluntary acts do not entitle the
benefited party to expect assistance on future occasions, at least in the absence of an

3

The Court avoids the term “Good Samaritan” doctrine in this context, since the phrase is more
commonly used today to refer to state statutory protections offered to good Samaritans who undertake
negligent rescue attempts. See Black's Law Dictionary 624 (5th ed. 1979).
4
The voluntary assumption of duty doctrine is enunciated in the Restatement (Second) of Torts
§ 323 as follows:
One who undertakes, gratuitously or for consideration, to render services to another which he
should recognize as necessary for the protection of the other's person or things, is subject to
liability to the other for physical harm resulting from his failure to exercise reasonable care to
perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Section 324A parallels section 323 but deals with liability to third persons. Idaho has not
expressly adopted this approach, but courts cite it approvingly and Idaho common law embodies these
principles. See Fagundes v. State, 774 P.2d 343, 346 (Ct. App. 1989) (applying the provisions of Section
323); Carroll v. United Steelworkers of Am., 692 P.2d 361, 367 (Idaho 1984) (J. Bistline, dissenting)
(same); (Rawson v. United Steelworkers of America, 726 P.2d 742 (Idaho 1986), vacated on other
grounds, 482 U.S. 901, (1987) (applying the provisions of Section 324A). But see Bowling v. Jack B.
Parson Companies, 793 P.2d 703, 705 (1990) (rejecting the contention that section 324A has the status of
law in Idaho); Baccus v. Ameripride Servs., Inc., 179 P.3d 309, 314 (Idaho 2008) (rejecting as untimely
an argument the Idaho Supreme Court should adopt section 324A).
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express promise that future assistance will be forthcoming.” Udy v. Custer County, 34
P.3d 1069, 1073 (2001). However, a duty to provide future assistance may arise where:
(1) one has previously performed that service; (2) “others are relying on the continued
performance of the service”; (3) “and it is reasonably foreseeable that legally-recognized
harm could result from failure to perform the undertaking.” Baccus v. Ameripride Servs.,
Inc., 179 P.3d 309, 314 (Idaho 2008).
In accordance with assumption of duty principles, courts have held that the
“United States may be liable under the Federal Tort Claims Act for negligent provision of
services upon which the public has come to rely.” United Scottish Ins. Co. v. United
States, 614 F.2d 188, 196 (9th Cir. 1979) (quoting Gill v. United States, 429 F.2d 1072,
1075 (5th Cir. 1970). For example, in Indian Towing Co. v. United States, 350 U.S. 61,
126–27 (1955), the Supreme Court applied the assumption of duty doctrine in holding
that the Coast Guard was liable under the FTCA for failing to use due care in maintaining
a lighthouse on which sailors had come to rely.
While tort liability cannot be predicated upon a violation of federal law alone, as
noted above, the existence of federal regulations or statutes may provide evidence that the
government assumed a duty and may strengthen claims of justifiable reliance. See, e.g.,
Sheridan v. United States, 487 U.S. 392 (1988) (naval base firearm regulations); Olson v.
United States, 306 F. App'x 360, 363 (9th Cir. 2008) (Federal Coal Mine Safety and
Health Act regulations); Loge v. United States, 662 F.2d 1268 (8th Cir. 1981) (FDA
vaccine testing, licensing regulations); United Scottish Ins. Co. v. United States, 614 F.2d

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188, 194 (9th Cir. 1979), rev’d on other grounds United States v. Varig Airlines, 467 U.S.
797 (1984) (FAA inspection regulations).
Here, construing the facts and making all reasonable inferences in favor of
Harmon, the Court concludes that there is a genuine issue of material fact as to whether
BIA undertook a voluntary duty, on which the Harmons relied, to regulate water use on
the FHIP. The agency’s regulations and public communications to nearby farmers and
water users indicated that the agency would shut off water flows to poorly-maintained
ditches and abusive users. For example, a February 15, 2012 letter from BIA to project
water users advised that “[w]ater delivery may be reduced or refused to such ditches not
satisfactorily maintained.” Beck. Decl. Ex. P, at 2, Dkt. 16-18. BIA regulations suggest
the same. 25 C.F.R. § 171.130; 25 C.F.R. 171.220 (“You must . . . (c) [p]roperly operate,
maintain, and rehabilitate your farm ditch” to receive irrigation service). David Bollinger,
head of the FHIP, indicated that BIA used this authority to regulate water flow when
alerted to problems with private ditches. BIA would install collars, to restrict how high a
headgate could open, or install locks, to prevent a user from opening a headgate
altogether. Bollinger Dep. 103:16–105:9. Brandon McKean, the ditchrider supervisor,
testified as to the same. McKean Dep. 40:23–41:1. Nick Broncho, a ditchrider, confirmed
that when alerted to a problem with a private ditch, he would not permit the user to get
water until the problem was addressed. Broncho Dep. 27:18–28:10, 33:12–36:20, 129:4–
130:4.
The evidence also suggests that BIA induced reliance on their efforts to regulate

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water use. Douglas Harmon stated that, on various instances, BIA employees agreed to
place locks and collars on certain headgates thought to be the cause of flooding on his
property. D. Harmon Dep. 26:25–30:21. Gordon Hamon also testified that he asked BIA
employees to locks headgates to better regulate water use, noting that BIA employees
promised to “take care” of the problem. G. Harmon Dep. 20:20–21:20, 51:21–54:11.
Finally, BIA, through its employees, was aware that certain water users had
caused flooding issues, whether because of user errors or maintenance issues. See, e.g.,
McKean Dep. 34:17–35:12, 135:5–19. It was therefore reasonably foreseeable that BIA’s
failure to perform its voluntary undertaking—here, shutting off or regulating water use to
problematic ditches—would result in flooding damage to neighboring farms, a legallyrecognized harm.
In contrast, the evidence is insufficient to support a finding that BIA assumed a
duty to maintain private farm ditches. It appears that BIA previously performed both
preventative and emergency maintenance on the private ditches at issue. For example,
while controverted, Mr. Yupe testified that BIA was responsible for maintaining the
private ditch running along his property and had performed maintenance work every
spring, such as burning off weeds and re-ditching. Yupe Dep. 14:21–16:17, 23:11–24:8,
30:3–31:14. David Bollinger also testified that BIA performed an emergency repair upon
the Yupe ditch after the September 25 flooding incident. Bollinger Dep. 215:15–217:6.
However, Harmon presents no evidence that he relied on BIA to maintain private
ditches in good repair. While the Harmons were aware that BIA occasionally repaired the

MEMORANDUM DECISION AND ORDER - 25

Yupe ditch, knowledge alone is insufficient to give rise to reliance. Harmon appeared to
understand that BIA was not responsible for maintaining private ditches, and sought only
to have BIA to shut off water to poorly maintained ditches. D. Harmon Dep. 105:9–
105:11 (“They did a . . . poor job of policing. That is what their job is.”). Without any
reliance, BIA owed no duty to the Harmons to perform maintenance on the private
ditches. See Baccus v. Ameripride Servs., Inc., 179 P.3d 309, 314 (Idaho 2008).
(ii)

Causation

The government argues that even if BIA assumed a duty of care, Plaintiff’s
injuries were proximately caused by the acts and omissions of third parties, not those of
BIA. Five separate flooding events—occurring on July 4, August 6, August 20,
September 25, and September 26, 2012—are at issue in this case. The Court addresses
each in turn.
The flooding that occurred on July 4, 2012 and August 6, 2012 came from the
Ellsworth property located to the east of the Harmon property. D. Harmon Dep. 36:24–
38:14; G. Harmon Dep. 18:20–21:5; Pl. Mot. Summ. J. Ex. 6 at 8, Dkt. 13-8. It appears
that water from the Ellsworth property entered Plaintiff’s fields when Ellsworth failed to
properly monitor his flood irrigation. Pl. SOMF ¶ 16. Cliff Buckskin agreed that this
“was a common problem” he was aware of before 2012. Buckskin Dep. 28:12–14.
Buckskin also indicated that BIA employees had previously placed locks and collars to
prevent the Ellsworths from taking more water than they could handle. Buckskin Dep.
34:11–35:18; 54:5–56:2. There is a dispute as to whether the locks and collars were in

MEMORANDUM DECISION AND ORDER - 26

place in July and August, 2012. Thus, a reasonable jury could find that, but for BIA’s
negligent failure to install a lock or collar on the Park Lateral headgate or otherwise
restrict Ellsworth’s water use, Plaintiff’s land would not have been flooded.
The flooding that occurred on August 20 and September 26 was caused by a
headgate that had been opened too wide, allowing excess water to wash out part of a
private farm ditch and run over Plaintiff’s field. Def. SOF at 14; Pl. SOF ¶¶ 18, 19. A
reasonable jury could find that, but for BIA’s negligent failure to install a collar on the
Park Lateral headgate, Plaintiff’s land would not have been flooded.
Finally, the September 25 flooding was caused by a gopher hole in the Yupe
private farm ditch. There is no evidence that BIA was aware of the gopher hole before the
flooding incident, such that it might have had a duty to shut of water to the ditch.
Accordingly, Harmon has failed to demonstrate a material dispute of fact as to whether
BIA’s acts or omissions were an actual or proximate cause of this final flooding incident.
In sum, the Court concludes that Plaintiff has established sufficient facts to show
that BIA was both a proximate and actual cause of 4 of the 5 discrete flooding events.
However, the Court will grant summary judgment as to the flooding incident on
September 25.
CONCLUSION
For the reasons set forth above, the Court will grant Plaintiff’s Motion for
Spoliation Sanctions insofar as it seeks a permissive adverse-inference jury instruction
about the contents of the missing evidence. Questions of fact largely preclude summary

MEMORANDUM DECISION AND ORDER - 27

judgment on Plaintiff’s claims. However, the Court will grant the Government’s Motion
for Summary Judgment insofar as Plaintiff bases his negligence claim on (1) a duty of
care imposed by BIA regulation or (2) a voluntary assumption of duty to maintain private
farm ditches. Furthermore, the Court will grant the Government’s Motion for Summary
Judgment as to the September 25, 2012 flooding incident. Genuine issues of material fact
preclude summary judgment on the four remaining flooding incidents.
ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Spoliation Finding (Dkt. 24) is GRANTED IN
PART insofar as it seeks a permissive adverse-inference jury instruction
about the contents of this evidence and DENIED IN PART insofar as it
seeks a more detailed jury instruction with a list of mandatory inferences.

2.

The Government’s Motion for Summary Judgment (Dkt. 13) is
GRANTED IN PART and DENIED IN PART, in accordance with the
findings set forth above.

DATED: March 24, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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