Opinion
No. C 96-2161 SI.
April 29, 2003.
ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' MOTION TO STRIKE, AND GRANTING DEFENDANTS' MOTION FOR JUDICIAL NOTICE
On April 4, 2003, this Court heard argument on plaintiffs' motion for summary judgment and defendants' motion to strike. Having carefully considered the arguments of the parties and the papers submitted, the Court hereby GRANTS plaintiffs' motion and DENIES defendants' motion for the reasons set forth below.
BACKGROUND
This is a Clean Water Act ("CWA") case filed by San Francisco BayKeeper and Citizens Committee to Complete the Refuge (collectively "BayKeeper") against Cargill, Inc. and Cargill Salt Division (collectively "Cargill"). BayKeeper alleges that Cargill has for decades dumped industrial sludge and wash pond mud from its salt-refining process into a pond ("the Pond") on its property, which is located within the Don Edwards San Francisco Bay Wildlife Refuge at the southeastern part of the San Francisco Bay. The suit was filed on June 11, 1996. The Pond is directly beside Mowry Slough, a navigable water of the United States, and at the time when this suit was filed, the Pond and Mowry Slough were separated only by a manmade berm. Declaration of Daniel Purcell in Support of Plaintiffs' Motion for Summary Judgment, Exh. A. At high tide, Mowry Slough waters could come as close as one foot from the top of the berm, while at low tide, approximately 90 feet of marsh lay between Mowry Slough and the top of the berm. Purcell Decl., Exh. B at 6.
Judge Charles of this Court presided over the case until it was reassigned to the undersigned on September 28, 2001 upon remand from the Ninth Circuit.
On April 14, 1997, BayKeeper filed a First Amended Complaint stating seven CWA claims: (1) failure to obtain a stormwater permit; (2) failure to develop a stormwater pollution prevention program; (3) failure to develop and implement a monitoring program; (4) discharges in violation of Cargill's general permit; (5) discharges of non-stormwater in violation of Cargill's general permit; (6) unpermitted discharges of pollutants to waters of the United States; and (7) unpermitted discharges of fill to waters of the United States. FAC.
From the beginning, the parties disagreed about whether there existed CWA subject-matter jurisdiction over BayKeeper's claims relating to the Pond on Cargill's property. The CWA prohibits the "addition of any pollutant to navigable waters from any point source." 33 U.S.C. § 1362(12). "Navigable waters" are defined as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The CWA provides no further definition of "waters of the United States." In the absence of statutory authority, the Environmental Protection Agency ("EPA") has issued a regulatory definition of "waters of the United States." The applicable regulation lists several types of bodies of water that can be considered "waters of the United States," among them "waters which are subject to the ebb and flow of the tide"; "other waters such as . . . wetlands, sloughs . . . the use, degradation or destruction of which could affect interstate or foreign commerce"; "impoundments of water"; and tributaries. 40 C.F.R. § 122.2. Further, the definition included a preamble interpreting "waters of the United States" to include actual and potential migratory bird habitat. 53 Fed. Reg. 20763, 20765 (June 6, 1988). As discovery progressed, BayKeeper sought to prove that the Pond qualified as a "water of the United States" based on a number of theories related to the above regulations.
This aspect of the definition has been referred to as the "Migratory Bird Rule."
On December 5, 1997, after significant discovery had taken place, BayKeeper moved for partial summary judgment on its first and sixth claims. Despite the fact that it had apparently researched the possibility of raising multiple grounds for CWA subject matter jurisdiction, BayKeeper argued only one of its jurisdictional theories in its motion, namely that the Pond qualified as a "water of the United States" because it was used as a habitat by migratory birds. The Court granted BayKeeper's motion for partial summary judgment. The Court sided with BayKeeper on the jurisdictional question, finding that the Pond is water and that existing Ninth Circuit case law mandated a finding that the Pond is a "water of the United States" because it is used by migratory birds. Transcript of 1/26/98 Hearing, ¶. 29-35. The Court rejected Cargill's argument that the Pond fits within the exclusion for waste treatment systems described in the EPA regulation, finding that no waste treatment occurred in the Pond. Id. at p. 36. Further, the Court rejected Cargill's arguments that the Pond fit within an exclusion for a containment system, Cargill's reliance on a determination made by the Regional Water Quality Control Board, and Cargill's argument that its easement to use the property exempted it from liability. Id. at ¶. 37-38. The Court found that each of the elements of the two claims asserted by BayKeeper had been met, and ruled in its favor on those two claims. Id. at ¶. 39-41. BayKeeper voluntarily dismissed with prejudice all other counts in the complaint. The parties subsequently entered into a stipulated remedy, which the Court incorporated into a final judgment which was issued on April 15, 1999.
The Court also denied a cross-motion for summary judgment by Cargill as to BayKeeper's standing and granted the cross-motion regarding plaintiffs' representational standing based on the standing of one member.
Both parties appealed. While the appeals were pending, the Supreme Court decided Solid Waste Agency of Northern Cook County v. Army Corps of Engineers ("SWANCC") 531 U.S. 159 (2001), which held that the Migratory Bird Rule, when applied to intrastate waters, exceeded the authority granted under the CWA. Explaining that SWANCC "has made us uncertain whether the Clean Water Act confers jurisdiction in this case," the Ninth Circuit vacated the judgment in this case and remanded for further proceedings. San Francisco BayKeeer v. Cargill Salt Division, 263 F.3d 963,964 (9th Cir. 2001). The Ninth Circuit noted that plaintiffs asserted alternative grounds for finding jurisdiction, but concluded that:
The Ninth Circuit further found that Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), also decided after the summary judgment ruling, mandated reversal of this Court's finding that plaintiffs in this case had no standing to seek civil penalties.
the record is insufficiently developed for us to rule on those alternative grounds. We therefore remand the matter to the district court to consider, in such further proceedings as the district court deems appropriate for the purpose, whether alternative grounds for jurisdiction exist, and whether, if so, such grounds have previously been waived or abandoned by plaintiffs. . . . If the district court determines that it has jurisdiction, it can then address the remaining issues that may have been affected by the intervening events listed above, or by its jurisdictional determination on remand, and can enter judgment accordingly.Id.
It has already been determined that Cargill deposited its industrial waste into the Pond and that this waste contained toxic pollutants. Now before the Court are plaintiffs' motion for summary judgment, and defendants' motion to strike portions of the declaration of Dr. Robert Curry.
LEGAL STANDARD
The Federal Rules of Civil Procedure provide for summary adjudication when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In a motion for summary judgment, "[if] the moving party for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that "the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, `specific facts showing that there is a genuine issue for trial.'" See T.W, Elec. Service. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626,630 (9th Cir. 1987) (citingCelotex Cor. v. Catrett, 477 U.S. 317, 106 S.Ct. 317 (1986)).
In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the nonmoving party. See T.W. Electric, 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. Fed.R.Civ.P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49 (2d Cir. 1985); Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Hearsay statements found in affidavits are inadmissible. See, e.g., Fong v. American Airlines, Inc., 626 F.2d 759, 762-63 (9th Cir. 1980).
ARGUMENT
A. Plaintiffs' motion for summary judgment
Plaintiffs argue that the Supreme Court's interpretations of the Clean Water Act leave no doubt that water bodies, like the Pond, which are adjacent to navigable waters, such as Mowry Slough, are protected under the Clean Water Act. Defendants, however, argue that, under SWANCC and the Clean Water Act, the Pond is not a water of the United States.
1. Clean Water Act jurisdiction
The Clean Water Act defines its jurisdiction as extending to "navigable waters," which is defined as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The Code of Federal Regulations provides the following definitions:
(s) The term waters of the United States means:
(1) All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce, including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce. Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(4) All impoundments of waters otherwise defined as waters of the United States under this definition;
(5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
(6) The territorial sea;
(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 C.F.R. § 423.11 (m) which also meet the criteria of this definition) are not waters of the United States.
(t) The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs and similar areas.40 C.F.R. § 230.3(s)-(t).
The Army Corps of Engineers' definition of "water of the United States," at 33 C.F.R. § 328.3, is very similar.
The Supreme Court's holding in SWANCC limited these definitions somewhat. The Court there stated: "The term `navigable' has at least the import of showing us what Congress had in mind as its authority for enacting the CWA: its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be so made."SWANCC, 531 U.S. at 171-172. However, the Court also stated:
It was the significant nexus between the wetlands and "navigable waters" that formed our reading of the CWA in [United States v.] Riverside Bayview Homes, [ 474 U.S. 121 (1985)]. Indeed, we did not "express any opinion" on the "question of the authority of the Corps to regulate discharges of fill material into wetlands that are not adjacent to bodies of open water . . ." 474 U.S. at 131-132, n. 8. In order to rule for respondents here, we would have to hold that the jurisdiction of the Corps extends to ponds that are not adjacent to open water. But we conclude that the text of the statute will not allow that.SWANCC, 531 U.S. at 168 (emphasis in original).
Plaintiffs assert that this language of SWANCC means that a body of water is subject to Clean Water Act regulation if it is adjacent to open water, citing the Fifth Circuit's opinion inRice v. Harken Exploration Co., 250 F.3d 264 (5th Cir. 2001), which stated: "Under SWANCC, it appears that a body of water is subject to regulation under the CWA if the body of water is actually navigable or is adjacent to an open body of navigable water." Rice, 250 F.3d at 269.
Plaintiffs further assert that this case should properly be decided under Riverside Bayview Homes, and that SWANCC did not overrule the holding of Riverside. Riverside stated:
the [Clean Water] Act's definition of "navigable waters" as the "waters of the United States" makes it clear that the term "navigable" as used in the Act is of limited import. In adopting this definition of "navigable waters," Congress evidently intended to repudiate limits that had been placed on federal regulation by earlier water pollution control statutes and to exercise its powers under the Commerce Clause to regulate at least some waters that would not be deemed "navigable" under the classical understanding of that term.Riverside, 474 U.S. at 133. The Court further held:
In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.
This holds true even for wetlands that are not the result of flooding or permeation by water having its source in adjacent bodies of open water. The Corps has concluded that wetlands may affect the water quality of adjacent lakes, rivers, and streams even when the waters of those bodies do not actually inundate the wetlands. . . . In short, the Corps has concluded that wetlands adjacent to lakes, rivers, streams, and other bodies of water may function as integral parts of the aquatic environment even when the moisture creating the wetlands does not find its source in the adjacent bodies of water.Id. at 134-35. Plaintiffs maintain that, on this same basis, other bodies of water, like the Pond, adjacent to navigable waters should also be protected by the Clean Water Act.
Defendants argue that, while the EPA and Army Corps of Engineers regulations treat wetlands as waters of the United States if they are adjacent to navigable waters, the Pond is not a wetland, and therefore should not be defined as a "water of the United States." See 33 C.F.R. § 323.3(b) and 40 C.F.R. § 230.3(s)(7). However, the same characteristics that justified protection of adjacent wetlands in United States v. Riverside Bayview Homes apply as well to adjacent ponds. Ponds, like wetlands, can affect the water quality of adjacent navigable waters, capture runoff, prevent flooding and erosion and serve as shared wildlife habitat for local wildlife.
At oral argument, plaintiffs' counsel reasoned that if wetlands, which do not contain water, are protected under the Clean Water Act when they are adjacent to navigable waters, then certainly ponds, which do contain water, are protected when similarly adjacent to navigable waters.
Defendants maintain that the holding of SWANCC limited the Clean Water Act definition of navigable waters to "the traditional test of navigable-in-fact for commercial purposes." However, other courts have not found such a limitation inSWANCC. See, for example, the Fifth Circuit's decision inRice v. Harken Exploration Co.; see also In re Needham, 279 B.R. 515, 518 (W.D. La. 2001) (restating the holding of Rice that "a body of water is subject to regulation under the CWA if and only if the body of water is actually navigable or is adjacent to an open body of navigable water."); Headwaters. Inc. v. Talent Irrigation District. 243 F.3d 526, 533 (9th Cir. 2001) (holding that a non-navigable irrigation canal connecting navigable waterbodies was a "water of the United States.");United States v. Buday. 138 F. Supp.2d 1282 (D. Mont. 2001) (holding that the Clean Water Act confers jurisdiction over tributaries distant from navigable waters, as they "are ecologically capable of undermining the quality of the navigable water.").
The district court in FDP Enterprises, Inc. v. United States Army Corps of Engineers, 239 F. Supp.2d 509, 513-17 (N.J. 2003), surveyed the various decisions concerning the jurisdictional reach of the Clean Water Act in the wake ofSWANCC, and observed that a "split" has developed:
Courts interpreting the scope of [SWANCC] have essentially split into two camps. Under one reading, the [SWANCC] case represents a significant shift in the Court's CWA jurisprudence, calling to question the continuing validity of CWA jurisdiction over waters which are not either actually navigable or directly adjacent to navigable waters. On the other hand, an alternative reading of [SWANCC] holds that the case applied only to "isolated water," and thus would permit continued CWA jurisdiction over all waters which have at least a minimal hydrological connection to navigable waters.Id, at 513. The FDP Enterprises case summarized the Fifth Circuit's "limited" reading as follows:
The Fifth Circuit has interpreted [SWANCC] to substantially limit CWA jurisdiction, holding that under the Supreme Court's reasoning, "a body of water is subject to regulation under the CWA if the body of water is actually navigable or is adjacent to an open body of navigable water." [citing Rice v. Harken]Id., at 515. The opinion went on to characterize the Ninth Circuit's ruling in Headwaters. Inc. v. Talent Irrigation as having adopted an even broader reading of SWANCC than did the 5th Circuit. FDP, 239 F. Supp.2d at 515.
A determination that a pond adjacent to a navigable body of water is protected by the Clean Water Acts is consistent with both the more limited reading of the Fifth Circuit and the more expansive reading of the Ninth Circuit. Furthermore, the Supreme Court stated in SWANCC that "it is . . . plausible, as petitioner contends, that Congress simply wanted to include all waters adjacent to `navigable waters.'" SWANCC, 531 U.S. at 171 (emphasis added).
This Court determines that bodies of water that are adjacent to navigable waters are "waters of the United States" and are therefore protected under the Clean Water Act.
2. Analysis of whether the Pond is adjacent to navigable water
Plaintiffs maintain that the Pond is adjacent to the navigable water of Mowry Slough. Plaintiffs first assert that the Pond sits directly beside Mowry Slough and that, at the time that this suit was filed, the navigable water of Mowry Slough regularly came within a few feet of the Pond at high tide. Purcell Decl. Ex. A.; Purcell Decl. Ex. B. (Rollins Decl.) ¶ 16. Plaintiffs further cite the reports of defendants' experts, which reflect that the Pond is separated from Mowry Slough by saturated soils, and that Slough water frequently entered the Pond through the top of the berm at high tide. Purcell Decl. Ex. D. (1997 Berlogar Report) at 8; Purcell Decl. Ex. E. (Horne Depo) at 73:1-14; Id. at 50:5-13. Plaintiffs argue that Cargill has admitted that the Pond has been used in interstate commerce as part of Cargill's industrial dump site. Purcell Decl. Ex. H (Cargill's Opposition to Plaintiffs' [Previous] Motion for Summary Judgment at 1). Finally, plaintiffs maintain that while SWANCC was concerned that isolated ponds implicated federalism concerns, this pond does not do so, as it is on federal land, and located in the middle of a federal wildlife refuge. See SWANCC, 531 U.S. at 174.
Defendants counter that their experts have concluded, after extensive studies over a period of years, that there was no hydrologic connection, subsurface or surface, between Mowry Slough and the Pond. Todd Decl. at ¶¶ 4,7; Winzler Decl. at ¶ 9; Berlogar Decl. at ¶¶ 4-10; Horne Decl. at ¶¶ 5-8; Josselyn Decl. at ¶ 5. However, defendants' own experts have opined that, at the time that this suit was filed, water from Mowry Slough regularly leaked through the berm into the Pond during high tides. Alexander Horne, Ph.D., one of Defendant's experts, concluded in his rebuttal report to Dr. Curry's report:
From the evidence of the salinity in the seeps I would conclude that it is unlikely that Pond water contaminates the soils around the Pond beyond the berms. More likely the push of high tides is forcing small amounts of originally normal, now slightly concentrated Mowry Slough water into the Pond.
Declaration of Alexander Home, Exh. 3 at 2. Dr. Home restated this conclusion during his deposition:
Q. Is it your opinion the push of small amounts of originally normal, now slightly concentrated Mowry Slough water into the Pond?
A. Yes.
Q. Isn't it true given the right hydrology conditions, the water would also flow from with the right hydrology conditions, just in case there is any doubt, a situation where the water level in the Pond is higher than the water level in the slough?
A. I don't know.
Q. Is it possible that given those hydrology conditions, water would flow from the Pond to the slough?
A. It is possible.
Purcell Decl. Exh. E at 50:10-23. The September 30, 1997 Berlogar Geotechnical Consultants report states:
The September 19, 1997 extreme high tide was measured at about 5.9 to 6.0 feet . . . Under that tide, three leakage areas were noted on the in-board face of the levee. The first and second leaks occurred at locations where the top of the levee is at about 6.5 feet and the third leak was at an area where the top of the levee is at about 6.9 feet.
Purcell Decl. Exh. D at 8. The statements of defendants' experts demonstrate that the Pond was adjacent to Mowry Slough at the time that this suit was filed, that the soils between the Pond and Mowry Slough are saturated, and that the berm between the Pond and Mowry Slough leaked and allowed Slough water to enter the Pond at high tide.
Given these statements from defendants' own experts, as well as the uncontested material facts in the reports from plaintiffs' experts, this Court finds that the Pond is a body of water adjacent to Mowry Slough, a navigable water, and that therefore, the Pond is a "water of the United States" and is protected under the Clean Water Act. Accordingly, this Court GRANTS plaintiffs' motion for summary judgment.
B. Defendants' motion to strike
Cargill makes many objections to the Declarations of Dr. Robert R. Curry in Support of Plaintiffs' Motion for Summary Judgment, and moves to strike all of the portions of the Declaration to which it objects. First, Cargill objects to Exhibit A to the Curry Declaration, on the ground that the exhibit, Dr. Curry's November 24, 2002 report in this action, does not meet the test for admissibility under Federal Rules of Evidence 702 and 703, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Second, Cargill objects to the last sentence of Paragraph 3 of the Curry Declaration, on the ground that it is inadmissible expert opinion and is not reliable under FRE 702 and 703, and Daubert Third, Cargill objects to Paragraph 6 of the Curry Declaration on the ground that there is insufficient data and information to render the purported observations and calculation of liquid flow to the Pond reliable. Fourth, Cargill objects to Paragraph 7 of the Curry Declaration on the ground that there is insufficient data and information to render the purported observations of liquid flow through the levee and into the Pond reliable.
Rule 702 lays down the standards for testimony by expert witnesses. It states
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.Daubert provided, and the Advisory Committee Notes to Rule 702 list, some non-exclusive factors for trial courts to use in assessing the reliability of scientific expert testimony. These are:
(1) whether the expert's technique or theory can be or has been tested — that is, whether the expert's theory can be challenged in some objective sense, or whether it is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;
(2) whether the technique or theory has been subject to peer review and publication;
(3) the known or potential rate of error of the technique or theory when applied;
(4) the existence and maintenance of standards and controls; and
(5) whether the technique or theory has been generally accepted in the scientific community.
In addition, Rule 403 states "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury."
1. Exhibit A
Defendants assert that neither the methodology used nor the conclusions reached in Dr. Curry's report are reliable or scientifically valid. This Court finds that Dr. Curry has produced evidence that he is an expert in hydrogeology and methods of hydrogeology. Therefore, this Court DENIES defendants' motion to strike the report.
2. The last sentence of Paragraph
Cargill objects to the last sentence of Paragraph 3 of Dr. Curry's Declaration, which reads: "I concluded that this erosion pattern was likely the result of water moving back and forth through the berm, and that the water seeping into the Pond was likely Slough water moving through the berm." Curry Declaration 1:18-21. Cargill contends that Dr. Curry lays no foundation for this conclusion, and that he admits that he has made no personal observation and has no other objective evident to support his opinion that there is any water moving back and forth. However, plaintiffs respond that this statement is not expert opinion at all, but was only Dr. Curry's preliminary hypothesis, and that Dr. Curry referred to this conclusion only to provide factual background relevant to his subsequent dye testing. Plaintiffs also contend that this statement is not necessary to the motion for summary judgment, as the motion does not depend on a showing that water moves from the Pond to the Slough, and that the objection is in any event meritless, as Dr. Curry did rely on personal observation of objective evidence in reaching this conclusion.
This Court agrees with BayKeeper that the statement at issue here is not expert opinion, and therefore DENIES Cargill's motion to strike the last sentence of Paragraph 3 of Dr. Curry's declaration.
3. Paragraph 6
Cargill objects to Paragraph 6 of Dr. Curry's Declaration. Paragraph 6 reads:
As Mowry Slough approached the high tide, I noticed flow from the inboard Pond face of the berm toward the waters of the Pond. To measure roughly the volume and speed of flow, I then placed dye tablets near the top of the inboard face of the berm. Using the dye, I measured the flow of water into the Pond at two to six inches per second.
[Corrected] Curry Declaration ¶ 6. Cargill states that there is no data presented in Dr. Curry's reports, declaration, or field notes of how he measured this flow of water into the Pond; that the information is irrelevant; and that Dr. Curry's dye test methodology is unreliable and inadmissible.
The original Curry Declaration stated that the flow was measured at two to six feet per second. Plaintiffs have since filed a Corrected Declaration.
In response, BayKeeper asserts that this statement is not expert testimony, but is percipient-witness testimony, and that there is nothing scientific, technical, or specialized about these statements. Plaintiffs further state that Dr. Curry offers additional percipient testimony on this point at paragraph 3 of his declaration, to which defendants do not object. This Court agrees with plaintiffs that this statement is percipient-witness testimony, and DENIES defendants' motion to strike.
4. Paragraph 7
Finally, defendants object to Paragraph 7 of Dr. Curry's Declaration. Paragraph 7 reads:
Having observed water flowing from the berm into the Pond, I then conducted an additional test to establish that the water flowing into the Pond from the berm comes from Mowry Slough. With the Slough now nearly at its highest point, I removed the dye from the inside of the berm and allowed the remaining dye to flush downward. I then moved to the outside of the berm and placed dye tablets into the Slough next to the outboard face of the berm, near the erosional scars I had noted during my previous visits. Only minutes later, I observed rivulets of green dye trickling into the Pond through the levee. The flow continued undiminished for several minutes until a substantial percentage of the green dye had made its way to the Pond.
Curry Decl. ¶ 7. Defendants assert that there is insufficient data and information to render these purported observations of liquid flow reliable, as Dr. Curry has presented no data of how he was scientifically able to verify that this flow from the dye tablet placed outside the levee was the same dye. However, plaintiffs again state that this was first-hand percipient witness testimony based on personal knowledge. This Court agrees with plaintiffs that, even in the absence of scientific training, Dr. Curry was entitled to infer from this visual evidence that the dye was carried through the berm by water. Therefore, this Court DENIES defendants' motion to strike.
C. Request for judicial notice
Defendants request the Court to take judicial notice of three documents: 1) Stipulation and Order of Dismissal with prejudice in United States v. Cargill, Inc., No. C-98-4388 SI (N.D. Cal.); 2) the Statement of Assistant Attorney General Thomas L. Sansonetti Before the United States House of Representatives Committee on Government Reform Subcommittee on Energy Policy, Natural Resources, and Regulatory Affairs, dated September 20, 2002; and 3) "Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of `Waters of the United States'" 68 Fed. Rg. 1991 et seq. (Jan. 15, 2003). This request is GRANTED.
CONCLUSION
For the foregoing reasons, plaintiffs' motion for summary judgment is GRANTED; defendants' motion to strike is DENIED; and defendants' request for judicial notice is GRANTED.
IT IS SO ORDERED.