DeForest et al v. City of Ashland et al

Filing 126

ORDER: Denying Motion 47 ; Granting in Part Denying in Part Motion 62 ; Adopting Findings and Recommendation 116 . The Court ADOPTS Judge Clarke's R&R 116 . Plaintiffs' Motion for Judicial Notice 62 is GRANTED in part and D ENIED in part. Defendants' Motion to Strike 88 is DENIED. Plaintiffs Motion for Partial Summary Judgment 47 is DENIED. Defendants' Motions for Partial Summary Judgment 73 and 90 , regarding Plaintiffs' claims under the Resource Conservation and Energy Act (count 2 of the First Amended Complaint) and Endangered Species Act (count 3 of the First Amended Complaint) are GRANTED. See, formal Order. Signed on 11/10/2016 by Judge Ann L. Aiken. (rr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
CATHY DEFOREST, LEON PYLE, and
EDWARD KERWIN,

No. 1:11-cv-03159-CL
ORDER

Plaintiffs,
vs.
CITY OF ASHLAND, ASHLAND GUN
CLUB, INC., CHUCK PARTLER, BILL
LONGIOTTI, RICK GEORGESON, LEE
TUNEBERG, MEL WINNER, MIKE
LANIER, KEN KASTEEL, GEORGE
FRITSCH!, and BOB MORRIS,
Defendants.

AIKEN, Judge:
On July 25, 2016, Magistrate Judge Clarke filed an Opinion and Order ("Opinion") denying
plaintiffs' motions for discovety sanctions and to strike and denying defendant City of Ashland's
request for attorney's fees (doc. 115).
I -ORDER

The same day, Judge Clarke filed a Report and

Recommendation ("R&R") recommending this Court grant in pmt and deny in part plaintiffs' motion
for judicial notice, deny defendants' motion to strike, deny plaintiffs' motion for partial summary
judgment, and grant defendants' motion for pattial summary judgment (doc. 116). The Opinion and
the R&R are now before me pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72. All defendants
filed objections to the R&R, and the Gun Club defendants' filed objections to the Opinion. For the
reasons set fotth below, I decline to modify or set aside any part of the Opinion and adopt the R&R
in full.
The Magistrates Act establishes procedures for district judges to review orders issued by
magistrate judges. Depending on the nature of the order, review may be de nova or for clear error.
As relevant here, the Opinion -

which contains rulings regarding discovery, sanctions, and

attorney's fees-is reviewed for clear error. 28 U.S.C. § 636(b)(l)(A); Fed R. Civ. P. 72(a). By
contrast, for the R&R, I must review "de nova ... those portions ... to which objection is made."
28 U.S.C. § 636(b)(l)(C); accord Fed. R. Civ. P. 72(b)(3); Holder v. Holder, 392 F.3d 1009, 1022
(9th Cir. 2004). For those portions of the R&R to which no party objected, the Act does not
prescribe any standard of review. Thomas v. Arn, 474 U.S. 140, 152 (1985). Following the
recommendation of the Advisoty Committee on the Federal Rules of Civil Procedure, I review those
pmts of the R&R for "clear error on the face of the record." Fed. R. Civ. P. 72(b) adviso1y
committee's note.
I find no clear error in the Opinion or in the R&R's analysis of the motion for judicial notice
motions to strike, motion for discove1y sanctions, or request for attorney's fees. In pmticular, Judge

1

In this Order, the pluase "Gun Club defendants" refers collectively to defendant Ashland
Gun Club and all individually named defendant board members of the Ashland Gun Club.
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Clarke did not clearly err in finding defendants' failure to produce certain evidence in discovery was
substantially justified. As Judge Clarke observed, the parties entered settlement negotiations within
months of this case being filed and while discove1y was still ongoing. Settlement negotiations
continued for two and a half years, with Judge Clarke formally staying proceedings in August 2013.
Judge Clarke stated that the Court "would not expect formal discove1y to continue during the stay
as the goal was to limit costs while a settlement was sought." Doc. 115 at 2. Judge Clarke also
noted that plaintiffs never "follow[ed] up on or complet[ed] any remaining discove1y or fi[ed] any
motions to compel" before filing the motions for summmy judgment and for sanctions. Id. Judge
Clarke thus implicitly found that defendants' failure to supplement discove1y was "substantially
justified" by their reasonable understanding that discove1ywas stayed during settlement negotiations.
That finding is not clearly erroneous. The challenged evidence remains part of the summaiy
judgment record.
I fmther find no error in Judge Clarke's summary judgment reasoning.

Defendants

introduced substantial evidence that lead shot has been reclaimed and recycled at the Gun Club since
the 1970s, with organized, well-documented reclamation occurring since at least 2008. Once
defendants produced that evidence, the burden shifted to plaintiffs to "provide affidavits or other
sources of evidence that 'set fo1th specific facts showing that there is a genuine issue for trial."'
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en bane) (quoting Fed. R. Civ. P. 56).

Plaintiffs have now had at two opportunities to meet that burden: when they filed a response to
defendants' motions for partial summary judgment, and when they filed objections to the R&R.
Each time, plaintiffs chose not to address the substance of the reclamation evidence. Instead,
plaintiffs argued the bulk of the reclamation evidence should be excluded from the summaty
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judgment record, then argued the spent lead bullets were "solid waste" due to absence of evidence
of reclamation and recycling. As explained, Judge Clarke rejected the argument the evidence should
be excluded, and this Court will not disturb that ruling because it is not clearly erroneous. Plaintiffs
therefore failed to carry their burden in opposing defendants' motion for summmy judgment on the
second claim for relief.
With respect to plaintiffs' claim under the Endangered Species Act, Judge Clarke applied the
correct standard in requiring actual or "reasonably certain" imminent harm. Marbled Murrelet v.
Babbit, 83 F.3d 1060, 1066 (9th Cir. 1996). In their response to defendants' motions for partial

summary judgment, plaintiffs cited the following evidence in the summmy judgment record: (1)
maps and a report showing the Gun Club is located on a flood plain and (2) a screenshot of
Washington state's Depattment of Ecology website stating that lead can affect the behavior, brain
development, reproduction, and growth of animal species. That evidence does not show there is a
triable issue of material fact with respect to whether harm to salmon is "reasonably certain." Judge
Clarke correctly concluded plaintiffs' causal chain contains too many unsuppotted inferences to
withstand a motion for summaty judgment.
I ADOPT Judge Clarke's R&R (doc. 116). Plaintiffs' motion for judicial notice (doc. 62-1)
is GRANTED in part and DENIED in part. Defendants' motion to strike (doc. 88) is DENIED.
Plaintiffs motion for pattial summaty judgment (doc. 47) is DENIED. Defendants' motions for
pattial summary judgment (docs. 73 and 90), regarding plaintiffs' claims under the Resource
Conservation and Energy Act (count 2 of the First Amended Complaint) and Endangered Species
Act (count 3 of the First Amended Complaint) are GRANTED.
IT IS SO ORDERED.
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11

JJ1wr1t16e.v·

Dated this@day of0etobcr2016.

Ql.GCZ 0:1~~V'-_j
Ann Aiken
United States District Judge

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