In Re: United States of America & State of NM v. A & R Productions, et al

Filing 3337

Subfile ZRB-2-0038 PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge William P. Lynch re 3305 MOTION for Summary Judgment filed by Craig Fredrickson, 3315 3317 cross-motion for summary judgment filed by Plainti ffs, and 3316 MOTION to Exclude Expert Opinion Testimony, Subfile No. ZRB-2-0038 filed by United States. Objections to PFRD due by 2/21/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, and
STATE OF NEW MEXICO, ex rel. STATE
ENGINEER,
Plaintiffs,
and
ZUNI INDIAN TRIBE, NAVAJO NATION,
Plaintiffs in Intervention,
v.
A & R PRODUCTIONS, et al.,
Defendants.

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No. 01-cv-0072 MV/WPL
ZUNI RIVER BASIN
ADJUDICATION

Subfile No. ZRB-2-0038

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
At issue are pro se Subfile Defendants Craig and Regina Fredrickson’s (“the
Fredricksons”) motion for summary judgment (Doc. 3305), the cross-motion for summary
judgment filed by the United States and the State of New Mexico (collectively, “Plaintiffs”)
(Docs. 3315, 3317), the Plaintiffs’ motion to exclude expert opinion testimony (Doc. 3316), and
the Fredricksons’ request for sanctions (Doc. 3320 at 12-15). The Fredricksons request that this
Court grant summary judgment in their favor and declare, among other things, that the well on
their land is entitled to a livestock watering water right of 3.779 acre feet per year (“AFY”). The
sole dispute in this case is the extent, if any, of a livestock watering right for well 10A-5-W06.
The parties have already agreed that well 10A-5-W06 is entitled to a domestic use water right of
0.7 AFY. The Plaintiffs request that this Court grant summary judgment in their favor and

declare, among other things, that the well on the Fredricksons’ land is not entitled to any water
right for livestock watering.
The record in the Basin adjudication is extensive. I do not address, beyond what is
necessary for the determination of these motions, the factual or procedural history of this case.
Having considered the parties’ filings and the relevant law, I recommend that the Court grant the
Plaintiffs’ motion to exclude expert testimony, deny the Fredricksons’ request for sanctions,
deny the Fredricksons’ motion for summary judgment, and grant the Plaintiffs’ motion for
summary judgment, as described herein.
MOTION TO EXCLUDE EXPERT TESTIMONY
On June 27, 2016, Craig Fredrickson tendered to the Plaintiffs the third and final draft of
his purported expert report. Mr. Fredrickson purports to render five opinions: 1) that the priority
date for well 10A-5-W06 is December 31, 1955; 2) that the historic, beneficial use of well 10A5-W06 included livestock watering from 1955 through 2000; 3) that the place of use of well
10A-5-W06 is S. 19 T. 5N R. 18W NE NE NW; 4) that the period of use of well 10A-5-W06 for
livestock watering was throughout the year—twelve months; and 5) that “[w]ith a reasonable
degree of scientific certainty, the maximum amount of groundwater diverted through well 10A5-W06 for beneficial purpose of livestock watering was 3.779 [AFY].” (Doc. 3305 Ex. 7 at 4-5.)
I.

Standard of Review

The first step when confronted with a motion to exclude expert testimony is to determine
which parts of the proposed testimony are indeed expert testimony under Federal Rule of
Evidence 702 and which are lay testimony under Federal Rule of Evidence 701. Lay witnesses
may opine on those matters that are “(a) rationally based on the witness’s perception; (b) helpful

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to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
FED. R. EVID. 701.
The admissibility of expert testimony is analyzed under Daubert and Federal Rule of
Evidence 702, pursuant to which judges must serve as gatekeepers to keep scientific and other
expert testimony that is not reliable and relevant out of the courtroom. Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 596-97 (1993). For expert testimony to be admissible, the judge
must ensure that the expert is sufficiently qualified to give the opinion, the expert’s methodology
must be sufficiently reliable, and the testimony must assist the trier of fact to understand an issue
in the case. Id. In Kumho Tire, the Supreme Court made clear that the Daubert framework
applies not only to scientific testimony, but to all expert testimony. Kumho Tire Co v.
Carmichael, 526 U.S. 137, 147 (1999). “In determining whether expert testimony is admissible,
the district court generally must first determine whether the expert is qualified ‘by knowledge,
skill, experience, training, or education’ to render an opinion.” United States v. Nacchio, 555
F.3d 1234, 1241 (10th Cir. 2009) (quoting FED. R. EVID. 702). “Second, if the expert is
sufficiently qualified, the court must determine whether the expert’s opinion is reliable by
assessing the underlying reasoning and methodology, as set forth in Daubert.” Id. Because “there
are many different kinds of experts, and many kinds of expertise,” the Daubert factors are not a
definitive checklist or test and some factors may not be pertinent to assessing the reliability of
non-scientific experts. Kumho Tire, 526 U.S. at 150; see generally William P. Lynch, Doctoring
the Testimony: Treating Physicians, Rule 26, and the Challenges of Causation Testimony, 33
REV. LITIG. 249, 301-09 (2014).

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When considering Daubert challenges to expert testimony, courts must be careful to
maintain the proper balance between the court’s role as gatekeeper and the jury’s role as the
ultimate fact finder. McDowell v. Brown, 392 F.3d 1283, 1299-1300 (11th Cir. 2004). To present
expert testimony, a party must show that the methods employed by the expert in reaching his
conclusions are based on reliable methodologies and that his opinions are based on facts
sufficiently tied to the case. Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). When
expert testimony meets the Daubert standard, the expert may testify and the fact finder decides
how much weight, if any, to give that testimony. Zuchowicz v. United States, 140 F.3d 381, 387
(2d Cir. 1998).
II.

Discussion

Plaintiffs’ move to exclude Mr. Fredrickson’s report and any testimony related thereto on
the basis that Mr. Fredrickson is not an expert on the matters upon which he seeks to testify and,
even if Mr. Fredrickson is an expert, his opinions are not sufficiently reliable to be considered
under Daubert and Federal Rule of Evidence 702. (See generally Doc. 3316.) The Fredricksons’
response is self-defeating: they concede that Mr. Fredrickson is not an expert and contend that
his opinion and report are admissible pursuant to Federal Rule of Evidence 701. (Doc. 3320 at 712 (“In reality, the opinions or inferences contained within [Mr. Fredrickson’s] report do not
require any specialized knowledge and could be reached by any ordinary person. As such they do
not represent expert opinion.”).)
Mr. Fredrickson is a nuclear engineer by training. He has not studied cattle operations or
agricultural science, has never raised or run cattle, and has no experience—beyond this
litigation—in the historical use of water. (See Doc. 3316 Ex. B at 3-7 (C. Fredrickson Dep., July

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6, 2016, at 13:1-22; 19:9-21; 20:6-11; 36:4-7).) At his deposition, Mr. Fredrickson testified that
he is “an expert in conducting technical analysis based upon published data on a wide variety of
issues[, a]nd by virtue of the scope of this report [he] made [him]self familiar with publications
and data that is [sic] relevant to the topic of the elements of water rights associated with livestock
watering.” (Id. at Ex. B at 9 (C. Fredrickson Dep. 47:8-22).)
“The proponent of the expert testimony bears the burden of showing that the testimony is
admissible.” Conroy v. Vilsack, 707 F.3d 1163, 1168 (10th Cir. 2013). The Fredricksons
explicitly concede that Mr. Fredrickson is not an expert in cattle operations, water rights,
divining the quantity of water historically used, or other matters directly on point in this
litigation. (Doc. 3320 at 8.) Absent this concession, it remains clear that Mr. Fredrickson is not
an expert in cattle operations or qualified to give any of his opinions. Mr. Fredrickson has never
“researched, written about, or opined on this topic before,” Conroy, 707 F.3d at 1169, and admits
that his only experience or other qualification for this case is his training as an engineer. I
recommend that the Court find that Mr. Fredrickson is not a qualified expert in these matters.
The next question is to determine whether the opinions about which Mr. Fredrickson
intends to testify could be admissible as lay testimony. They cannot. Mr. Fredrickson relied on
external studies for his analysis, (see generally Doc. 3305 Ex. 7 (Fredrickson Expert Report)),
admits that he was not personally present at any time when cattle were run on the property, and
does not have any personal experience with the historical use of the property. Mr. Fredrickson’s
proposed testimony is not, and cannot be, “rationally based on [his] perception . . . and . . . not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
FED. R. EVID. 701.

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Because Mr. Fredrickson could not have gained the knowledge about which he proposes
to testify through personal experience and without the use of specialized knowledge, his
testimony would be expert testimony. However, as discussed above, Mr. Fredrickson is not a
qualified expert on these matters. Accordingly, I recommend that the Court grant the Plaintiffs’
motion to exclude Mr. Fredrickson’s proposed testimony.
REQUEST FOR SANCTIONS
In their response to Plaintiffs’ motion for summary judgment and motion to exclude
expert testimony, the Fredricksons request that the Court sanction the Plaintiffs for “fail[ing] to
respond to the order of the Court to produce a written expert report from Mr. Turnbull that
established the factual basis for the livestock-use component water right as required by the Joint
Status Report agreement.” (Doc. 3320 at 15.) The relevant portion of the Joint Status Report
reads:
As contemplated under Fed. R. Civ. P. 26(a)(2), Plaintiffs will prepare and
produce a written expert report from Mr. Turnbull (or another appropriate expert
identified by Plaintiffs) to rebut the opinion of any expert witness retained by
Defendants. If Defendants do not produce a written expert report, Plaintiffs will
nevertheless prepare a written expert report from Mr. Turnbull that established the
factual basis for the livestock use component water right . . . .
(Doc. 3167 Ex. 1 at 6.) The Fredricksons assert that because Plaintiffs concluded that Mr.
Fredrickson is not a qualified expert, they were required to produce a written expert report from
Mr. Turnbull “that established the factual basis for the livestock-use component water right as
required by the Joint Status Report agreement”—which they did not do. (Doc. 3320 at 13
(citation omitted).) As sanction, the Fredricksons argue that the Court should “grant[] default
judgement [sic] on [the Fredricksons’] Motion for Summary Judgment,” pursuant to Federal
Rules of Civil Procedure 16(1)(C) and 37(b)(2)(A)(vi). (Id.)

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The Fredricksons’ argument would put opposing parties in an absolutely impossible
situation: either concede that a designated individual is a qualified expert and forego any
available motion to exclude, without regard for the individual circumstances of the case, or avail
themselves of a motion to exclude and be punished for operating as though the designated expert
qualified. This result is nonsensical.
In this case, the Fredricksons produced a report from Mr. Fredrickson designated as an
expert report. The Fredricksons held Mr. Fredrickson out as an expert throughout discovery. The
Plaintiffs operated as though Mr. Fredrickson were a qualified expert and responded by
producing a report from Mr. Turnbull, as agreed upon in the Joint Status Report. The Plaintiffs
were not precluded from challenging Mr. Fredrickson’s designation as an expert or from
attempting to exclude the purportedly expert testimony.1
The Plaintiffs complied with the scheduling order and the agreement expressed in the
Joint Status Report. I recommend that the Court deny the Fredricksons’ request for sanctions.
MOTIONS FOR SUMMARY JUDGMENT
I.

Standard of Review

Summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). The moving party bears the initial burden of “‘showing’ . . . that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998). Once the moving
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Plaintiffs assert that the motion to exclude filed concomitantly with the cross-motion for
summary judgment “was the first opportunity for Plaintiffs to present the issue to the Court for
resolution.” (Doc. 3327 at 15.) This is not strictly true. While the parties did have a deadline for Daubert
motions, the deadline does not prohibit parties from filing such motions early. While the Plaintiffs could
have filed their motion to exclude prior to the deadline, it was not improper to wait until the deadline.

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party has met this burden, the nonmoving party must identify specific facts that show the
existence of a genuine issue of material fact requiring trial on the merits. Bacchus Indus., Inc. v.
Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmovant must identify these facts
by reference to “affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Adler, 144 F.3d at 671. A fact is “material” if, under the governing law, it could have an effect
on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
dispute over a material fact is “genuine” if a rational jury could find in favor of the nonmoving
party on the evidence presented. Id. A mere “scintilla” of evidence is insufficient to successfully
oppose a motion for summary judgment. Id. at 252. The record and all reasonable inferences
therefrom must be viewed in the light most favorable to the nonmovant. See Muñoz v. St. MaryCorwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000). When there are cross-motions for summary
judgment, each motion is to be treated separately. Christy v. Travelers Indem. Co. of Am., 810
F.3d 1220, 1225 n.3 (10th Cir. 2016).
The burden of establishing a water right would be on the Fredricksons, as the users of
water, regardless of which party moved for summary judgment. Where the burden of persuasion
at trial would be on the nonmovant, the movant can meet Rule 56’s burden of production by
either (1) providing affirmative evidence negating an essential element of the nonmovant’s claim
or (2) showing the Court that the nonmovant’s evidence is insufficient to demonstrate an
essential element of the nonmovant’s claim. Celotex, 477 U.S. at 331 (citations omitted).
Evidence provided by either the movant or the nonmovant need not be submitted “in a form that
would be admissible at trial.” Id. at 324. Rather, the content of the evidence presented must be
capable of being presented in an admissible form at trial. Trevizo v. Adams, 455 F.3d 1155, 1160

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(10th Cir. 2006). For example, parties may submit affidavits to support or oppose a motion for
summary judgment, even though the affidavits constitute hearsay, provided that the information
can be presented in another, admissible form at trial, such as live testimony. See FED. R. CIV. P.
56(c)(4); Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010); Trevizo, 455
F.3d at 1160.
II.

Discussion

The Fredricksons and the Plaintiffs filed cross-motions for summary judgment. I treat
each motion individually.
New Mexico state law provides the substantive standards for this adjudication. (Doc.
2954 at 2.) The Constitution of the State of New Mexico provides that “[t]he unappropriated
water . . . within the state . . . is hereby declared to belong to the public.” N.M. CONST. Art. 16
§ 2. “Beneficial use shall be the basis, the measure and the limit of the right to the use of water.”
Id. at § 3. That is, a water user may acquire the right to use water through beneficial use. N.M.
STAT. ANN. § 72-1-2; State ex rel. Erickson v. McLean, 308 P.2d 983, 987 (N.M. 1957).2
“Beneficial use” means the “direct use or storage and use of water by man for a beneficial
purpose including, but not limited to, agricultural, municipal, commercial, industrial, domestic,
livestock, fish and wildlife, and recreational uses.” N.M. CODE R. 19.26.2.7(D) (2014).
Adjudicated water rights decrees must declare “the priority, amount, purpose, periods and place
of use.” § 72-4-19.
“The burden of proof with respect to quantifying a water right in a stream system
adjudication falls squarely on a defendant, or the user of the water right.” State v. Aamodt, No.
2

Unless otherwise noted, all statutory references are to the New Mexico Statutes Annotated,
current on Westlaw through the end of 2015.

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Civ. 66-6639 MV/WPL, Subfile PM-67833, Doc. 8119 at 6 (D.N.M. Feb. 24, 2014)
(unpublished) (citing Pecos Valley Artesian Conservancy Dist. v. Peters, 193 P.2d 418, 421-22
(N.M. 1948)).
The parties agree that well 10A-5-W06 is entitled to a domestic use water right of 0.7
AFY, but disagree as to the existence and extent of a livestock use water right.
A. The Fredricksons’ Motion
The Fredricksons moved for summary judgment in their favor, specifically seeking a
declaration that well 10A-5-W06 is entitled to a livestock use water right of 3.779 AFY. The
burden is on the Fredricksons to justify a water right above the 0.7 AFY for domestic use
purposes that was offered by the Plaintiffs. Id.
Because I recommend that the Court strike Mr. Fredrickson’s purported expert report, I
also must recommend that the Court deny the Fredricksons’ motion for summary judgment.
Absent the report, the Fredricksons came forth with no evidence supporting their contention that
well 10A-5-W06 historically used 3.779 AFY for the purpose of livestock watering.
However, should the Court decline to strike Mr. Fredrickson’s purported expert report
and instead conclude that the Fredricksons’ met their burden of establishing a livestock watering
right, I recommend that the Court conclude that any livestock watering right that existed in well
10A-5-W06 was abandoned long ago.
Abandonment is a creature of the common law. State ex rel. Reynolds v. South Springs,
452 P.2d 478, 481-82 (N.M. 1969). Abandonment “is the relinquishment of the right by the
owner with the intention to forsake and desert it,” and intent can be shown by “evidence of the
failure of the party charged to use the right, or the water, or to keep the works necessary for the

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utilization of the water in repair; and if such nonusage or neglect is continued for an
unreasonable period, it may fairly create the presumption of the intention to abandon.” Id. at 48081 (quotation omitted).
It is undisputed that no livestock have been run on this property since at least 2000, and
thus the well has not been used for livestock watering since that time. The Fredricksons,
however, contend that they intend to put the well to future use for livestock watering. (See, e.g.,
Doc. 3320 at 6.) However, it is undisputed that any livestock watering right for well 10A-5-W06
has not been put to beneficial use for at least 17 years.
In New Mexico, a “protracted period of nonuse” creates a presumption that a water right
holder intended to abandon the water right and shifts the burden of proof to the holder of the
right to show the reasons for nonuse and to demonstrate the absence of intent to abandon. State
ex rel. Office of State Engineer v. Elephant Butte Irr. Dist., 287 P.3d 324, 331 (N.M. Ct. App.
2012) (citing South Springs, 452 P.2d at 481-82). The 17-year period of nonuse involved in this
case is an unreasonable period of nonuse and creates the presumption of intent to abandon. See
United States v. Abousleman, No. Civ. 83-1041 MV/WPL, Doc. 3647 at 9 (D.N.M. Jan. 23,
1998) (unpublished) (holding that the Pueblos successfully raised a “presumption of an intent to
abandon with a showing of 16 or more years of nonuse of water by the defendant”); South
Springs, 452 P.2d at 483 (citing with approval Colorado cases that found an unreasonable period
of nonuse at forty, thirty, and eighteen years).
While the Fredricksons presented competent and admissible evidence that they have not
intended to abandon any livestock water right during their tenure as owners, that is not the only
element they must meet to rebut the presumption of abandonment: the Fredricksons must also

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show reasons for nonuse. See Elephant Butte Irr. Dist., 287 P.3d at 331. The Fredricksons cited
drought conditions as a reason for nonuse. However, the Fredricksons do not own cattle or other
livestock, and have never owned cattle or other livestock. They have not attempted to make use,
of any kind, of the water right. Accordingly, I find that the Fredricksons failed to provide any
valid reason for the seventeen years of nonuse under their ownership and the ownership of their
predecessors in interest. Accordingly, I recommend that the Court deny the Fredricksons’ motion
for summary judgment.
B. The Plaintiffs’ Motion
The Plaintiffs also moved for summary judgment in their favor, specifically seeking a
declaration that well 10A-5-W06 is not entitled to any livestock use water right. The burden
remains on the Fredricksons to justify a water right above that which was offered by the
Plaintiffs.3 (Doc. 2985 at 2-3.)
The undisputed facts of the well were discussed above. The Fredricksons continue to bear
the burden of proving their alleged livestock use water right. The Fredricksons produced no
admissible evidence establishing an existing livestock use water right. Accordingly, I
recommend that the Court determine that the Fredricksons failed to establish a livestock use
water right in well 10A-5-W06 and grant the Plaintiffs’ motion for summary judgment.
Even if the Fredricksons established a livestock use water right in well 10A-5-W06, that
right was abandoned long ago. Seventeen years of nonuse creates a presumption of
abandonment. The Fredricksons now bear the burden of rebutting that presumption with

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While Plaintiffs previously offered to resolve this matter, they explicitly withdrew that offer
with the filing of their cross-motion for summary judgment. (Doc. 3315 at 10-11 n.5.) Previous settlement
negotiations are not admissible. FED. R. EVID. 408. Accordingly, I assume that the Plaintiffs have offered
no livestock use water right.

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evidence that there was no intent to abandon the water right and that there was a reason for the
period of nonuse. Elephant Butte Irr. Dist., 287 F.3d at 331. While the Fredricksons presented
acceptable evidence to show that they have not intended to abandon the water right since 2006,
they presented no evidence or valid reason for the period of nonuse. As such, the Fredricksons
failed to rebut the presumption of abandonment. Should the Court find that a livestock use water
right existed in well 10A-5-W06, I recommend that the Court further determine that such water
right was abandoned and the Fredricksons failed to meet their burden of rebutting the
presumption of abandonment. Accordingly, I recommend that the Court grant the Plaintiffs’
motion for summary judgment and conclude that the Fredricksons do not hold a livestock use
water right in well 10A-5-W06.
Further, I recommend that the Court adjudicate the following water right in well 10A-5W06:
WELL
Map Label:

10A-5-W06

OSE File No:

G 02469

Priority Date:

12/31/1955

Purpose of Use:

NON 72-12-1 DOMESTIC

Well Location:

As shown on Hydrographic Survey Map 10A-5

S. 19 T. 05N

R. 18W

1/4, 1/16, 1/64 NW

X (ft): 2,439,962

NE

NE

Y (ft): 1,329,981

New Mexico State Plane Coordinate System, West Zone, NAD 1983
Amount of Water:

Historical beneficial use not to exceed 0.7 ac-ft per annum

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CONCLUSION
For the foregoing reasons, I recommend that the Court grant the Plaintiffs’ motion to
strike the purported expert report of Craig Fredrickson, deny the Fredricksons’ motion for
sanctions, deny the Fredricksons’ motion for summary judgment, and grant the Plaintiffs’ crossmotion for summary judgment. Specifically, I recommend that the Court conclude that no
livestock use water right exists in well 10A-5-W06, and that if any such livestock use water right
ever did exist in that well, it has been abandoned.

THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the Proposed Findings and Recommended Disposition. If
no objections are filed, no appellate review will be allowed.

______________________________
William P. Lynch
United States Magistrate Judge

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.

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