Opinion
2:20-CV-00123-KJM-DMC
04-26-2022
CALIFORNIA OPEN LANDS, a nonprofit land trust organization, Plaintiff, v. BUTTE COUNTY DEPARTMENT OF PUBLIC WORKS, a political subdivision of the State of California, DENNIS SCHMIDT, an individual, and ERIC MILLER, an individual, Defendants.
ABBOTT & KINDERMANN, INC. DIANE G. KINDERMANN GLEN C. HANSEN Attorneys for Defendants BUTTE COUNTY DEPARTMENT OF PUBLIC WORKS, DENNIS SCHMIDT, ERIC MILLER LAW OFFICES OF ANDREW L. PACKARD ANDREW L. PACKARD WILLIAM N. CARLON Attorney for Plaintiff CALIFORNIA OPEN LANDS
ABBOTT & KINDERMANN, INC.
DIANE G. KINDERMANN
GLEN C. HANSEN
Attorneys for Defendants BUTTE COUNTY DEPARTMENT OF PUBLIC WORKS, DENNIS SCHMIDT, ERIC MILLER
LAW OFFICES OF ANDREW L. PACKARD
ANDREW L. PACKARD
WILLIAM N. CARLON
Attorney for Plaintiff CALIFORNIA OPEN LANDS
ORDER APPROVING STIPULATION TO FILE AMENDED ANSWER
(FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. §§ 1251-1387)
DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE.
Plaintiff CALIFORNIA OPEN LANDS (“Plaintiff') and Defendants BUTTE COUNTY DEPARTMENT OF PUBLIC WORKS, DENNIS SCHMIDT, and ERIC MILLER (“Defendants”) (collectively, the “Parties”) by and through their respective counsel, hereby stipulate as follows:
WHEREAS, Plaintiff filed a Complaint for Declaratory and Injunctive Relief and Civil Penalties in the above-entitled matter on January 16, 2020.
WHEREAS, on February 27, 2020, Defendants filed their Answer To Complaint For Declaratory And Injunctive Relief And Civil Penalties;
WHEREAS, Defendants seek to amend their Answer in order to add three new Affirmative Defenses as follows:
SIXTEENTH AFFIRMATIVE DEFENSE
Defendants are not liable for the causes of action alleged in the Complaint because the events, circumstances and occurrences that are alleged in the Complaint resulted from causes beyond Defendants' control, and because section 7.D of the Conservation Easement alleged in the Complaint provides, in relevant part: “Acts Beyond Parties' Control. Nothing contained in this Easement shall be construed to entitle any party to bring any action against Grantor or Grantee for any injury to or changes in the Preserve resulting from causes beyond their control, including, without limitation, fire, drought, flood, storm, and earth movement.”
SEVENTEENTH AFFIRMATIVE DEFENSE
By bringing the purported causes of action in the Complaint, Plaintiff breached the terms of the Conservation Easement that is alleged in the Complaint, because Defendants' causes of action allege events, circumstances and occurrences that resulted from causes beyond Defendants' control, and because section 7.D of the Conservation Easement provides, in relevant part: “Acts Beyond Parties' Control. Nothing contained in this Easement shall be construed to entitle any party to bring any action against Grantor or Grantee for any injury to or changes in the Preserve resulting from causes beyond their control, including, without limitation, fire, drought, flood, storm, and earth movement.”
EIGHTEENTH AFFIRMATIVE DEFENSE
Defendants are not liable for the causes of action alleged in the Complaint because the events, circumstances and occurrences that are alleged in the Complaint resulted from Acts of God.
WHEREAS, the deadline for discovery on all of Defendants' Affirmative Defenses is not until July 1, 2022.
THE PARTIES HEREBY STIPULATE that Defendants be granted leave to file an Amended Answer that adds the following Affirmative Defenses.
SIXTEENTH AFFIRMATIVE DEFENSE
Defendants are not liable for the causes of action alleged in the Complaint because the events, circumstances and occurrences that are alleged in the Complaint resulted from causes beyond Defendants' control, and because section 7.D of the Conservation Easement alleged in the Complaint provides, in relevant part: “Acts Beyond Parties' Control. Nothing contained in this Easement shall be construed to entitle any party to bring any action against Grantor or Grantee for any injury to or changes in the Preserve resulting from causes beyond their control, including, without limitation, fire, drought, flood, storm, and earth movement.”
SEVENTEENTH AFFIRMATIVE DEFENSE
By bringing the purported causes of action in the Complaint, Plaintiff breached the terms of the Conservation Easement that is alleged in the Complaint, because Defendants' causes of action allege events, circumstances and occurrences that resulted from causes beyond Defendants' control, and because section 7.D of the Conservation Easement provides, in relevant part: “Acts Beyond Parties' Control. Nothing contained in this Easement shall be construed to entitle any party to bring any action against Grantor or Grantee for any injury to or changes in the Preserve resulting from causes beyond their control, including, without limitation, fire, drought, flood, storm, and earth movement.”
EIGHTEENTH AFFIRMATIVE DEFENSE
Defendants are not liable for the causes of action alleged in the Complaint because the events, circumstances and occurrences that are alleged in the Complaint resulted from Acts of God.
IT IS ORDERED that the parties' stipulation above is approved. The Amended Answer has been filed at ECF No. 48.