Opinion
CV-19-08285-PCT-MTL
09-13-2022
Save the Colorado, et al., Plaintiffs, v. United States Department of the Interior, et al., Defendants.
ORDER
Michael T. Liburdi, United States District Judge
Pending before the Court is the Joint Motion to Strike Plaintiffs' Reply Statement of Facts and References to the Second Powell Declaration (Doc. 125) (the “Motion”), which was filed by Intervenors Irrigation & Electrical Districts' Association of Arizona and Colorado River Energy Distributors Association, Inc. (collectively, the “Hydropower Intervenors”). The Motion is fully briefed (Docs. 129, 130) and for the following reasons, the Court grants in part, and denies in part, the Motion.
I.
Plaintiffs filed their Motion for Summary Judgment on January 26, 2022. (Doc. 92.) On March 3, 2022, Federal Defendants filed their Motion for Judgment on the Pleadings or, in the Alternative, Cross-Motion for Summary Judgment and Response to Plaintiffs' Motion for Summary Judgment. (Doc. 105.) On April 7, 2022, Intervenors Southern Nevada Water Authority, Central Arizona Water Conservation District and The Metropolitan Water District of Southern California (collectively “Lower Basin Contractors”) filed their Joinder in Federal Defendants' Motion for Judgment on the Pleadings or, in the Alternative, Cross Motion for Summary Judgment. (Doc. 111.)
On April 8, 2022, Hydropower Intervenors, and the movant for this Motion, filed their response in Opposition to Plaintiffs' Motion for Summary Judgment and their Controverting Statement of Facts and Separate Statement of Facts in Support of Opposition to Plaintiff's Motion for Summary Judgment. (Docs. 113, 114.) That same day, the States of Arizona,* California, Colorado, Nevada, Utah, and Wyoming (collectively, the “State Intervenors”) filed their Joint Response to Plaintiffs' Motion for Summary Judgment; Cross-Motion for Summary Judgment and Joinder in the Federal Government's Motion; Memorandum in Support of Motion. (Doc. 115.)
Plaintiffs filed their Combined Reply in Support of Their Motion for Summary Judgment, and Response in Opposition to All Intervenors' Cross-Motions for Summary Judgment (Doc. 121), as well as their Controverting Statement of Facts to Hydropower Intervenors' Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment (Doc. 122).
The Hydropower Intervenors' seek to strike, pursuant to Local Rule 7.2(m), the following: (1) Plaintiffs' Controverting Statement of Facts to Hydropower Intervenors' Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment (Doc. 122); and (2) all references to the Second Declaration of James L. Powell, Ph.D (“Second Powell Declaration”) that appear in Plaintiffs' Combined Reply and Response (Doc. 121). (Doc. 125 at 1.)
II.
A.
Local Rule 56.1(a) requires the party moving for summary judgment to file a separate statement of facts with its motion. The non-moving party must then file a statement, separate from its memo, that specifically responds to each of the moving party's statements of fact and that sets forth any additional facts that make summary judgment * “The State of Arizona acts through the Director of the Arizona Department of Water Resources for purposes of ‘[prosecuting] and defending] all rights, claims and privileges of this state [of Arizona] respecting interstate streams.'” (Doc. 115 at 1, n.1) (quoting Ariz. Rev. Stat. § 45-105(A)(9)). inappropriate. L.R.Civ.P. 56.1(b). “Local Rule 56.1 does not provide for a reply statement of facts or a response to the non-moving party's separate statement of facts.” Kinnally v. Rogers Corp., No. CV-06-2704-PHX-JAT, 2008 WL 5272870 at *1 (D. Ariz. Dec. 12, 2008).
Local Rule 7.2(m)(2) provides that any objection to the non-moving party's statement of facts, like Plaintiffs' objections in their Controverting Statement of Facts, must be made in a reply memorandum, and cannot be presented in a separate responsive memorandum. L.R.Civ.P. 7.2(m)(2); see also E.E.O.C. v. AutoZone, Inc., No. 06-CV-0926-PHX-SMM, 2008 WL 2509302 at *1 (D. Ariz. June 18, 2008) (“Should a moving party have any objections or replies to arguments or facts made in the Response or its supporting statement of facts, these ‘must be included in the responding party's reply memorandum for the underlying motion and may not be presented in a separate responsive memorandum.'” (citing L.R.Civ.P. 7.2(m)(2)).
The Court agrees with the Hydropower Intervenors that Plaintiffs' Controverting Statement of Facts (Doc. 122) should be stricken because Plaintiffs submitted the “the following controverting statement of facts to [Hydropower Intervenors] Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment (Dkt. #114).” (Doc. 122 at 2.) Plaintiffs should have instead included such objections and arguments in their underlying Reply memorandum. The Court will allow Plaintiffs to file a new Combined Reply and Response to incorporate such objections.
B.
The Court denies the Motion with respect to the Hydropower Intervenors second request regarding the Second Powell Declaration. The Court will, however, allow Hydropower Intervenors to file a sur-reply to address all references to the Second Powell Declaration that may appear in Plaintiffs' re-filed Combined Reply and Response, or other arguments that Plaintiffs may add. See Glass v. Asic N., Inc., 848 Fed.Appx. 255, 257 (9th Cir. 2021) (“Where new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the movant an opportunity to respond.”) (quoting Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996)).
III.
Accordingly, IT IS ORDERED granting in part, and denying in part, the Joint Motion to Strike Plaintiffs' Reply Statement of Facts and References to the Second Powell Declaration (Doc. 125).
IT IS FURTHER ORDERED that Plaintiffs' Controverting Statement of Facts to Hydropower Intervenors' Separate Statement of Facts in Support of Opposition to Plaintiffs' Motion for Summary Judgment (Doc. 122) shall be stricken from the docket.
IT IS FURTHER ORDERED that Plaintiffs shall have until September 21, 2022, to file a new Combined Reply and Response brief incorporating their objections.
IT IS FINALLY ORDERED that Hydropower Intervenors are granted leave to file a Sur-Reply brief no later than September 28, 2022.