El Paso Natural Gas Co. LLC v. United States

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff El Paso Natural Gas Company, LLC brings claims against Defendants United States of America, the Department of the Interior, the Bureau of Indian Affairs, the U.S. Geological Survey, the Department of Energy, and the Nuclear Regulatory Commission (collectively, the “United States”) under §§ 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). El Paso seeks to recover response costs incurred in remediating 19 historical uranium mines located on the Navajo Reservation (the “Mine Sites”). Doc. 55, ¶¶ 1-2. The United States has counterclaimed, asserting that El Paso is responsible for all response costs. Doc. 53.

         The United States moves to exclude opinions of El Paso expert Douglas Beahm. Doc. 156. The Court will deny the motion.

         II. Legal Standard.

         Under Rule 702, a qualified expert may testify on the basis of “scientific, technical, or other specialized knowledge” if it “will assist the trier of fact to understand the evidence, ” provided the testimony rests on “sufficient facts or data” and “reliable principles and methods, ” and “the witness has reliably applied the principles and methods to the facts of the case.” Fed.R.Evid. 702(a)-(d). An expert may be qualified on the basis of “knowledge, skill, experience, training, or education.” Id.

         The proponent of expert testimony has the ultimate burden of showing that the expert is qualified and the testimony admissible. See Lust v. Merrell Dow Pharm., Inc., 89 F.3d 594, 598 (9th Cir. 1996). The trial court must assure that expert testimony “both rests on a reliable foundation and is relevant to the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

         II. Discussion.

         The United States makes five arguments: (1) Beahm lacks the requisite knowledge, skill, experience, training, or education to render opinions based on aerial photographs; (2) he did not use reliable methods in his aerial photography analysis; (3) his testimony about a February 1954 aerial photograph is unreliable and misleading; (4) his testimony about possible exploratory drilling by the United States is misleading and does not aid the Court in resolving a factual issue; and (5) his testimony is duplicative of another expert for El Paso. Doc. 156 at 2-3.

         A. Qualification.

         The United States argues that aerial photography interpretation involves complicated techniques that require professional experience and training. Doc. 156-1 at 3-4. Mr. Beahm had only limited exposure to aerial photography in connection with three or four geology classes, and those classes were focused on identifying geological features, not manmade features. Id. During his 40-year career, Mr. Beahm never sought academic or specialized training in photo interpretation. Id. He has never published professional papers, received awards in this discipline, or been a member of any professional society in the field of aerial photographic interpretation. Id. The United States asserts that Mr. Beahm may be qualified to opine on geology or general mining issues, but not on aerial photo interpretation. Id.

         In response, El Paso cites portions of Mr. Beahm's deposition that largely confirm the United States' assertions. He testified to learning about aerial photography analysis in three or four courses focused on other subjects, and some fieldwork, at Colorado School of Mines. Doc. 164-2 at 6-8. He further testified such analysis “is part of what we do” at his firm, but provided no explanation of what he does with aerial photographs or how often. Id. Mr. Beahm's resume does reflect a 40-year career in natural resource exploration, mine development, mine operations, environmental permitting, and mine reclamation, but does not mention aerial photography analysis. Doc.164-1 at 41-44. El Paso provides no other information about his experience in this field.

         The Court cannot conclude that coverage of aerial photography in three or four college classes focused on other subjects, some college fieldwork, and the fact that Mr. Beahm's firm engages in aerial photography analysis for clients provide a sufficient basis for the Court to conclude that he is qualified to provide expert opinions in this field. But the Court cannot tell whether such qualifications are key to his opinions. His deposition suggests that he confirmed information from aerial photographs by field investigations on the ground. See Doc. 164-2 at 8-9 (“Q: Was it difficult to distinguish natural features at the mine sites from manmade activities based on the aerial photography that you reviewed in your first report? A: Yes. That's why I went to the field and looked at features on the ground.”). If Mr. Beahm's opinions are based on features confirmed on the ground, and not solely on aerial photographs, then his resume suggests that he likely has sufficient expertise to provide the opinions. The Court must resolve this issue on the basis of the foundation of and opinions expressed during the bench trial.^[1]

         B. Reliability.

         The United States argues that the methods used by Mr. Beahm to interpret aerial photographs are not reliable. Doc. 156-1 at 5. The United States contends that Mr. Beahm did not obtain aerial photographs of sufficient quality, prepare orthomosaic photos, or view the photos stereoscopically using techniques ...