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State ex rel. Darwin v. International Boundary And Water Commission

United States District Court, D. Arizona

September 20, 2017

State of Arizona, ex rel, Henry R. Darwin, Director, Arizona Department of Environmental Quality, Plaintiff,
v.
International Boundary and Water Commission, United States Section; Edward Drusina, in his official capacity as Commissioner of the International Boundary and Water Commission, United States Section, Defendants and Third-Party Plaintiffs,
v.
City of Nogales, Arizona, Third-Party Defendant.

          ORDER

          Honorable Frank R. Zapata Senior United States District Judge

         The factual and procedural history of this action are set forth in detail in the Court's previous Orders ruling on motions for partial summary judgment (Docs. 35, 85 and 127) and the Reports and Recommendations of Magistrate Judge D. Thomas Ferraro addressing Plaintiff State of Arizona's Motion for Partial Summary Judgment: Liability for Counts 2, 5, 6, 7, 8, and 9 (Doc. 68); the Amended Motion of the City of Nogales for Summary Judgment on Third Party Claim (Doc. 102); and the present Report and Recommendation - addressing (I) The City of Nogales' Motion for Summary Judgment Regarding Count II of Third Party Plaintiff USIBWC's Third Party Claim (Doc. 166); (II) USIBWC's Motion for Partial Summary Judgment on Liability on Count 9 of the State's Amended Complaint (Doc. 168); and (III) Plaintiff State's Motion for Partial Summary Judgment - Count 9 (Doc. 170) - now before the Court for consideration (Doc. 198).

         This matter has been referred to the United States Magistrate Judge for all pretrial proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court for the District of Arizona.

         Before the Court for consideration is the Report and Recommendation (Doc. 198) of Magistrate Judge D. Thomas Ferraro recommending that this Court:

(I) grant the State's motion for summary judgment on Count 9 of the First Amended Complaint and hold that there is no genuine dispute of material fact that the USIBWC is at least partial owner or operator of the International Outfall Interceptor (“IOI”), based in part on the USIBWC having admitted partial ownership of the IOI - from which wastewater is continuously discharged into the Nogales Wash in violation of Ariz. Rev. Stat. § 49-255-01 - and further based on the finding that the IOI is one continuous 8.8 mile pipeline and there is no physical distinction in the portions of the IOI at issue, and thus, the undisputed evidence establishes that the IOI is the entire 8.8 mile pipeline that runs from the international border to the current Nogales International Wastewater Treatment Plant (“NIWTP”) site;
(II) Enter summary judgment in favor of the USIBWC on a discrete subpart of Count 9 of the Amended Complaint - and find that there is no evidence that untreated wastewater is released through cracks in the IOI; and
(III) Enter summary judgment in favor of the City of Nogales on the Second Claim of the Third Party Complaint - based on the finding that there is no evidence that Nogales is at fault for the discharges from the IOI; and therefore, the USIBWC cannot recover from Nogales under the fault-based contribution theory of liability.

         Magistrate Judge Ferraro issued the Report and Recommendation at issue on April 4, 2017, following briefing and oral argument, setting forth the relevant factual background and analysis of Count 9 of the First Amended Complaint and Second Claim for relief of the Third Party Complaint under the relevant provisions of the Clean Water Act, 33 U.S.C. § 1251 et seq. - and the Arizona Pollutant Discharge Elimination System (“AZPDES”) permit program a federally approved National Pollutant Discharge Elimination System (“NPDES”) - administered by the Arizona Department of Environmental Quality (ADEQ) and approved under the Equal Protection Agency (“EPA”), 33 U.S.C. § 1342(a).

         The parties were advised that, pursuant to Rule 72(b)(2), Fed.R.Civ.P., any party may serve and file written objections within 14 days of being served with a copy of the Report and Recommendation, and a party may respond to the other party's objections within 14 days therefrom.

         Defendants USIBWC filed Defendants' Objection to Report and Recommendation on Plaintiff's Motion for Partial Summary Judgment (Doc. 199) objecting to the recommendation that the Court grant the Plaintiff State of Arizona's request for a determination that the IOI is the entire 8.8 mile pipeline that runs from the international border to the current NIWTP, which, if granted, “would constitute a holding that the USIBWC has an ownership interest in the entire pipeline.” The City of Nogales' Response to the USIBWC's Objection to the Report and Recommendation on Plaintiff's Partial Motion for Summary Judgment (Doc. 200) filed on May 2, 2017, opposes USIBWC's objection and urges the Court to affirm the Report and Recommendation in its entirely.

         Also filed on May 2, 2017, in response in opposition to USIBWC's objection, is Plaintiff State's Response to Defendant USIBWC's Objections to Magistrate Judge Ferraro's Recommendation (Doc. 201), substantiating that the State has proven that (1) discharges from the IOI into the Nogales Wash are ongoing; and (2) USIBWC is partial owner of the IOI. The State argues that USIBWC offered no relevant and material facts to dispute the findings that the State has satisfied both elements, and therefore, requests the Court deny USIBWC's objection and uphold the Report and Recommendation.

         Upon review and consideration of all matters presented and an independent review of the record herein, including the parties' objections, the Court finds that the findings of the Magistrate Judge on the City of Nogales' Motion for Summary Judgment Regarding Count II of Third Party Plaintiff USIBWC's Third Party Claim; USIBWC's Motion for Partial Summary Judgment on Liability on Count 9 of the State's Amended Complaint; and Plaintiff State's Motion for Partial Summary Judgment - Count 9, as set forth in the Report and Recommendation, shall be accepted and adopted as the findings of fact and conclusions of law of this Court. Accordingly, IT IS HEREBY ORDERED that the Report and Recommendation of the Magistrate Judge (Doc. 198) is ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court;

         IT IS FURTHER ORDERED that The City of Nogales' Motion for Summary Judgment Regarding Count II of Third Party Plaintiff USIBWC's Third Party Claim (Doc. 166) is GRANTED; accordingly, IT IS FURTHER ORDERED that the Clerk of Court enter judgment in favor of the City of Nogales on Claims 1 and 2 of the Third-Party Complaint and dismiss the Third-Party Complaint (Doc. 5) with prejudice;

         IT IS FURTHER ORDERED that USIBWC's Motion for Partial Summary Judgment on Liability on Count 9 of the State's Amended Complaint (Doc. 168) is GRANTED; notwithstanding the ...


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