ANTHONY W. ISHII, Senior District Judge.
The pretrial conference was held on August 20, 2014. Trial in this matter is set for October 28, 2014. The parties currently estimate that the trial shall take between three and four days.
This Court has original jurisdiction over this case pursuant to 28 U.S.C. sections 1331 and 1337, and section 317 of the Federal Power Act ("FPA"), 16 U.S.C. § 825p, which confers jurisdiction on the federal district courts for violations of the FPA as well as actions at law brought to enforce liabilities and duties created under FPA.
Venue is proper under 28 U.S.C. section 1391(b) and (c), as Defendants reside within the jurisdiction of this Court and the property subject to which this claim arises is situated in Calaveras County, California, which is within the judicial district of this Court.
Plaintiff does not believe that a jury trial is necessary. Defendants have requested a jury trial. The issue of defendants' entitlement to a jury trial will be briefed by the parties in their motions in limine unless an agreement regarding the use of a jury is made prior to September 8, 2014.
The facts of this case are undisputed. Tulloch Reservoir, also known as Lake Tulloch, is a man-made reservoir located near the city of Copperopolis, California. It is part of Hydroelectric Project No. 2067, known as the Tulloch Project. The Tulloch Project, constructed in the 1950s, is a water supply/power project located along the Stanislaus River, mostly on private land in Tuolomne and Calaveras Counties. The Tulloch Project includes Tulloch Dam, Tulloch Reservoir, Tulloch Penstock, Tulloch Powerhouse and Tulloch Switchyard. New Melones Reservoir, part of the U.S. Bureau of Reclamation's Central Valley Project, discharges directly into Tulloch Reservoir. Goodwin Dam, a diversion dam of the Oakdale Irrigation District, South San Joaquin Irrigation District, and Stock East Irrigation District, is downstream of Tulloch Reservoir. The reservoir has a normal maximum water surface elevation of 510 feet.
Tri-Dam, a cooperative venture of the Oakdale and South San Joaquin Irrigation Districts, owns and operates the Tulloch Project under a license issued by the Federal Energy Regulatory Commission (FERC). FERC requires each licensee to obtain control over all lands needed for the operation and maintenance of a hydroelectric project and other project purposes, such as flowage, shoreline control and protection of environmental resources. Tri-Dam received an initial license from FERC's predecessor to construct and operate the Tulloch Project from January 1, 1955 to December 31, 2004. Article 39 of this license gave Tri-Dam the permission, with prior approval of FERC, for use of lands within the area defined as the "FERC Project Boundary." For Tulloch Project, this boundary encompasses an area of approximately 1,619 acres and includes all land within a 515-feet elevation contour (five feet above the normal maximum water surface elevation) surrounding Tulloch Reservoir. Sixty-one percent of land within the FERC Project Boundary is privately owned, twenty-six percent of the land is owned by the Oakdale and South San Joaquin Irrigation Districts and twelve percent is owned either by the state or federal governments.
In 2002, Tri-Dam developed Tulloch Reservoir's most current Shoreline Management Plan ("SMP") in anticipation of obtaining a new license for the Tulloch Project. Complying with the FERC license required Tri-Dam to obtain FERC approval for (1) actions that would in any way reduce the storage capacity of Tulloch Reservoir and (2) use of lands within the FERC Project Boundary. The SMP recognized that there was considerable public interest for development of the Tulloch Reservoir shoreline and that some of this development could conceivably have only minor impacts on reservoir storage or project operations. Accordingly, the SMP expressed Tri-Dam's need to approach FERC for general approval of minor development activities to facilitate such activities within the project Boundary and avoid the need to obtain FERC approval for every individual development activity.
The SMP described the minor development activities for which Tri-Dam had requested FERC's approval. These activities included a "private facilities program", which provided in pertinent part that (1) all parties desiring to construct, expand, or rebuild a private single family facility (including dock structures) within the FERC Project Boundary must obtain authorization from Tri-Dam prior to beginning excavation or construction and (2) an awning, if installed, cannot exceed the footprint of the dock area excluding personal water craft ports; overhangs are not permitted. The SMP also outlined an "encroachment" permitting scheme. In this scheme, parties could apply for, and Tri-Dam would issue, permits authorizing a particular use or facility within the FERC Project Boundary. According to the SMP, all proposed development activities are subject to requirements of applying for and obtaining a Tri-Dam encroachment permit.
On December 23, 2002, Tri-Dam filed an application with FERC for a new license, pursuant to sections 4(e) and 15 of the Federal Power Act (FPA, 16 U.S.C. §§791 et seq.), to continue operations and maintenance of the Tulloch Project; the SMP was included as an exhibit to the new license application. On February 16, 2006, FERC issued a new license to Tri-Dam for a period of 39 years, 11 months subject to the terms and conditions of the FPA, which was incorporated into the license by reference. (Between 2004 and 2006, Tri-Dam operated the Tulloch Project under an annual license pending the disposition of its new license application.) Article 411 of this license approves the SMP. Article 413 gives Tri-Dam the authority to grant permission for certain uses and occupancies of project lands and waters, including noncommercial piers, landings, and boat docks, without prior FERC approval, and continuing responsibility to supervise and control the uses and occupancies for which it grants permission. If a permitted use or occupancy violates any condition imposed by the license or by Tri-Dam, article 413 gives Tri-Dam further authority to take any lawful action necessary to correct the violation, including cancelling the permission to use and occupy the project lands and waters and requiring the removal of any noncomplying structures and facilities.
In 2008, Chris Keller and Dawn Keller ("Defendants" or "the Kellers") purchased the real property at 51 Paseo Delago, Copperopolis (95228-9414), located on the waterfront of Tulloch Reservoir. At the time of the Kellers' purchase, the property included a dock. The dock is below the 515-feet elevation contour surrounding Tulloch Reservoir and thus within the FERC Project Boundary. The Kellers replaced the awning covering the dock, extending it past the dock's footprint, and installed two jet-ski ports. However, they did not obtain permits for any of these improvements.
Tri-Dam filed this action against the Kellers on August 5, 2011. On September 22, 2011, Tri-Dam filed its first amended complaint against the Kellers for violations of the FPA, FERC Regulations and the SMP, seeking a permanent injunction prohibiting the Kellers from installing, possessing or maintaining property within the Tri-Dam Project Boundary (1) without seeking prior approval and obtaining a permit from Tri-Dam and (2) that is not in compliance with a permit obtained from Tri-Dam. Tri-Dam also sought an injunction requiring the Kellers to submit plans to Tri-Dam for removal of property installed without approval of Tri-Dam.
Defendants contest all allegations and averments in the First Amended Complaint (Docket No. 8) other than those enumerated above.
The parties have indicated that they do not reasonably anticipate any specific disputes concerning the admissibility of evidence or use of demonstratives at trial.
Tri-Dam does not seek monetary damages. It seeks a permanent injunction: (1) prohibiting Defendants from installing, possessing, or maintaining property within the Project Boundary without seeking prior approval and obtaining a permit from Tri-Dam; (2) prohibiting Defendants from installing, possessing, or maintaining property within the Project Boundary that is not in compliance with a permit obtained from Tri-Dam; and (3) requiring Defendants within ten days of the permanent injunction to submit plans to Tri-Dam for removal of their property within the Project Boundary that was installed without prior approval from Tri-Dam. Tri-Dam also seeks its costs for prosecuting this action and reserves its right to seek reasonable attorney's fees.
Defendants oppose the relief sought on the grounds that to grant the relief would extend rights to Tri-Dam which were neither granted under the flowage easements, nor by subsequent property owners.
Tri-Dam's only claim is for a permanent injunction. A permanent injunction is appropriate where a plaintiff establishes "(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction." Northern Cheyenne Tribe v. Norton, 503 F.3d 836, 843 (9th Cir. 2007) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). "The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court, reviewable on appeal for abuse of discretion." Id. at 391. Tri-Dam has established all four elements entitling it to a permanent injunction against Defendants. Defendants have not established and cannot establish a viable affirmative defense to Tri-Dam's claim for a permanent injunction.
In response to Defendants' below statement, Tri-Dam believes that it has the authority to enforce the SMP irrespective of its easement rights and that the Court therefore need not apply state property law to resolve this dispute. This is not a simple real property dispute but rather one that involves the violation of a federal license issued by FERC. In addition, if necessary, Tri-Dam will prove at trial that Defendants' unauthorized improvements within the Project Boundary, including their dock, oversized awning, boat lift and jet ski ports, unreasonably interfere with Tri-Dam's easement.
Tri-Dam asserts it is entitled to a permanent injunction based on rights it has acquired over Defendants' property pursuant to flowage easements encumbering Defendants' property. The Court generally applies California law to resolve issues of interpretation of an easement in this matter. See Cortese v. United States, 782 F.2d 845, 849 (9th Cir. 1986); see also United States v. Park, 536 F.3d 1058, 1061 (9th Cir. 2008).
The rule of law has been established that ". . . the owner of the servient tenement may make any use of the land that does not interfere unreasonably with the easement." City of Pasadena v. California-Michigan Land & Water Co., 17 Cal.2d 576, 579, 110 P.2d 983, 985 (1941) (internal citations omitted). "Whether a particular use of an easement by either the servient or dominant owner unreasonably interferes with the rights of the other owner is a question of fact." Red Mountain, LLC. v. Fallbrook Pub.Util. Dist., 143 Cal.App.4th 333, 350, 48 Cal.Rptr.3d 875, 889 (2006) (internal citations omitted). Tri-Dam the right to clear, destroy, or dispose of obstructions or things that in any way interferes with the use, safety, or sanitariness of the dam and its margin. The Defendants' dock does not unreasonably interfere with the use, safety, or sanitariness of the dam. In addition, the flowage easements do not grant Tri-Dam the right to remove Defendants' dock improvements because Defendants' dock improvements do not unreasonably interfere with Tri-Dam's easement rights. The rights of Tri-Dam over Defendants' property flow from the easements, and Tri-Dam's FERC license has not extended the rights of Tri-Dam over Defendants' property. In summary, the elements required for the issuance of a permanent injunction are not present.
None at this time.
The following is a list of witnesses that the parties expect to call at trial, including rebuttal and impeachment witnesses. NO WITNESS, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE CALLED AT TRIAL UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT "MANIFEST INJUSTICE." Fed. R. Civ. P. 16(e); Local Rule 281.
None
The following is a list of documents or other exhibits that the parties expect to offer at trial. NO EXHIBIT, OTHER THAN THOSE LISTED IN THIS SECTION, MAY BE ADMITTED UNLESS THE PARTIES STIPULATE OR UPON A SHOWING THAT THIS ORDER SHOULD BE MODIFIED TO PREVENT "MANIFEST INJUSTICE." Fed. R. Civ. P. 16(e); Local Rule 16-281(b)(11).
Defendants adopt by reference all of the exhibits set forth in Tri-Dam's Exhibits, above.
Defendants adopt by reference all of the exhibits set forth in Tri-Dam's Discovery Documents, above.
If necessary, the parties may file a trial brief on one or more issues regarding the specific relief sought from this Court, including but not limited to Tri-Dam's authority to enforce the SMP.
At this time, the parties do not propose any stipulations for pretrial or trial purposes.
None at this time.
The parties do not believe that a settlement conference would be helpful.
The parties indicated that an agreed statement is "[n]ot [a]pplicable." The Court interprets the parties' statement as an indication that the parties do not believe that presentation of all or part of the action upon an Agreed Statement of Facts is feasible or advisable.
The parties have indicated their joint belief that a separate trial of any of the issues would be neither feasible nor advisable.
None requested.
Each party has reserved the right to seek its attorney's fees if it is the prevailing party. The Court will ascertain attorney's fees in the time and manner set forth in Local Rule 293.
The parties are ordered to file and serve their final list of witnesses by October 23, 2014. Additionally, at that time Plaintiffs shall disclose the order of witnesses so that Defendants will be prepared for cross-examination.
Except upon the showing set forth above in section VII, a party may not add witnesses to the final list of witnesses, or to any other updated witness list, who are not disclosed in this Order in Section VII.
The parties are directed to file and serve a Trial Brief by September 18, 2014. The parties need not include in the Trial Brief any issue that is adequately addressed in a motion in limine, or in an opposition brief to a motion in limine. Any Responsive Trial Brief must be filed and served by September 23, 2014.
The parties are directed to confer no later than September 3, 2014, for purposes of pre-marking and examining each other's exhibits. All joint exhibits must be pre-marked with numbers preceded by the designation JT/- (e.g., JT/1, JT/2). All of Plaintiffs' exhibits shall be pre-marked with numbers. All of Defendants' exhibits shall be pre-marked with letters. The parties may agree to another marking system if desired. (For example, if the parties agree, Plaintiffs could use the numbers one to 200 and Defendants could use the numbers 200 to 400.)
1. Counsel shall create four (4) complete, legible sets of exhibits in binders as follows:
2. Counsel are to confer and make the following determination with respect to each proposed exhibit to be introduced into evidence, and to prepare separate indexes — one listing joint exhibits, and one listing each party's separate exhibits:
3. Each separate index shall consist of the exhibit number or letter, a brief description of the exhibit, and the three columns outlined above, as demonstrated in the example below:
Two sets of the completed joint index and the separate indexes shall be delivered to the Courtroom Clerk with the two sets of binders.
The Court has no objection to counsel using copies. However, the copies must be legible. If any document is offered into evidence that is partially illegible, the Court may sua sponte exclude it from evidence.
By October 23, 2014, each party shall file a list of all discovery documents the party intends to use at trial. The list shall indicate whether each discovery document has previously been lodged with the Clerk. If the discovery document has not been previously lodged, the party shall so lodge the document with the courtroom deputy clerk by October 23, 2014.
The hearing for motions in limine will be held on September 29, 2014 at 1:30 p.m. in Courtroom 2. In addition to addressing any filed motions in limine, at that time the Court will also settle, to the extent possible, any other matter pertaining to the conduct of the trial.
Counsel are expected to be fully cognizant of the legal issues involved in the case by the date of the hearing for motions in limine. Unless counsel come to an agreement among themselves, they are required to file motions in limine regarding 1) whether or not defendants are entitled to a jury where the only relief sought by plaintiff is injunctive, and 2) what law applies to the interpretation of the Tri-Dam easement (i.e. whether the appropriate standard for determining whether or not the easement has been violated is "unreasonable interference" with use of the easement or if a violation can be found based on a use which would "in any way interfere with the use of said reservoir, or the waters therein, or tend to render unsafe or unsanitary either the reservoir created by said Dam or the margin thereof.").
By September 8, 2014, all motions in limine, with supporting points and authorities, shall be filed and served either personally or by facsimile upon opposing counsel.
By September 18, 2014, opposition to any motion in limine shall be filed and served either personally or by facsimile upon opposing counsel. If a party does not oppose a motion in limine, that party shall file and serve in the same manner a Statement of Non-Opposition to that motion in limine.
By September 23, 2014, any reply to any motion in limine must be filed and served either personally or by facsimile upon opposing counsel. Filing of a reply is not required.
During the trial, it is the obligation of counsel to meet with the Court each morning to advise the Court and opposing counsel as to what documents are proposed to be put into evidence that have not previously been admitted by stipulation, Court order, or otherwise ruled upon. The Court will rule on those documents, to the extent possible, prior to the commencement of trial each day out of the presence of the jury. If the ruling depends upon the receipt of testimony, the Court will rule as requested upon the receipt of such testimony.
The Court shall consider any other legal matter at morning conferences as well. The Court does not wish to recess the trial to hear legal argument outside of the presence of the jury, and proper preparation by counsel will eliminate the need for that result.
Any party wishing to use a videotape or DVD for any purpose during trial shall lodge a copy of the videotape with the courtroom deputy clerk by October 23, 2014. If a written transcript of audible words on the tape is available, the Court requests that the transcript be lodged with the Court, solely for the aid of the Court.
If counsel intends to use a laptop computer for presentation of evidence, they shall contact the courtroom deputy clerk at least one week prior to trial. The courtroom deputy clerk will then arrange a time for counsel to bring the laptop to the courtroom, and meet with a representative of the Information and Technology Department and receive a brief training session on how counsel's equipment interacts with the Court's audio/visual equipment. If counsel intends to use PowerPoint, the resolution should be set no higher than 1024 × 768 when preparing the presentation.
In order to make the trial operate efficiently and smoothly, each counsel has the continuing obligation to advise opposing counsel as to what witnesses he or she intends to call twenty-four (24) hours prior to calling that witness.
The parties shall file and serve proposed jury instructions by October 23, 2014, along with a copy of the instructions on a CD-ROM disc, preferably formatted for Microsoft Word 2010. Alternatively, electronic filers shall attach a copy of their proposed jury instructions to an e-mail, which the party shall send to
All proposed jury instructions shall be in duplicate. One set shall indicate the party proposing the instruction, with each instruction numbered or lettered, shall cite supporting authority, and shall include the customary "Given, Given as Modified, or Refused," showing the Court's action with regard to each instruction. The other set shall be an exact copy of the first set, but shall be a "clean" copy that does not contain the identification of the offering party, instruction number or letter, supporting authority, or reference to the court's disposition of the proposed instruction.
The parties are ordered to confer after the September 29, 2014, hearing regarding the motions in limine to determine which instructions they agree should be given. If any disputes remain after resolution of the motions in limine, the parties are directed to identify for the Court the specific objections which exist as to each disputed instruction by October 23, 2014.
The parties shall file and serve proposed voir dire questions, if any, by October 23, 2014.
Further, in order to aid the Court in the proper voir dire examination of the prospective jurors, counsel should lodge with the Court on October 23, 2014 a list of all prospective witnesses, including rebuttal witnesses, that counsel reasonably expect to call. The purpose of the lists is to advise the prospective jurors of possible witnesses to determine if a prospective juror is familiar with any potential witness.
The parties shall lodge with the courtroom deputy clerk a joint agreed summary of the case, briefly outlining the positions of the parties by October 23, 2014. The summary will be read to the jury panel at the outset of the trial solely for the purposes of assisting in the jury selection process. The contents of the summary shall not be deemed to be evidence or an admission or stipulation by a party as to any contested fact or issue.
Any party may, within ten (10) calendar days after the date of service of this order, file and serve written objections to any of the provisions of this order. Local Rule 283. Such objection shall specify the requested corrections, additions or deletions.
1. All participants in the trial shall conduct themselves in a civil manner. There shall be no hostile interchanges between any of the participants.
2. All oral presentations shall be made from the podium, unless otherwise permitted by the Court.
3. Sidebar conferences are discouraged. Legal arguments or discussion of issues outside the presence of the jury should be done during recesses.
4. Counsel shall advise their respective clients and witnesses not to discuss any aspect of the case in the common areas of the courthouse accessible to the jurors, such as the lobby, the elevators, the hallways and the cafeteria.
1. The Court will conduct voir dire to be supplemented by any written questions submitted by counsel prior to trial and after the Court has concluded its questioning of the jury panel. The Court will allow 15 minutes of direct questioning by counsel.
1. Counsel may use visual aids in presenting the opening statement. However, any proposed visual aids shall be shown to opposing counsel before opening statement.
1. Counsel shall have his/her witnesses readily available to testify so that there are no delays in the presentation of evidence to the trier of fact.
2. At the close of each trial day, counsel shall disclose his/her anticipated witnesses and order of presentation for the next day, so that any scheduling or evidentiary issues may be raised at that time.
1. Before approaching a witness, counsel shall secure leave of Court to approach the witness.
2. Before approaching a witness with a writing, counsel shall first show the writing to opposing counsel.
1. All exhibits shall be marked and identified in accordance with the instructions in the Pretrial Order.
2. An exhibit shall not be published to the jury until it has been admitted into evidence and counsel has secured leave of Court to publish the exhibit.
3. The Court usually will conduct an on the record review of the exhibits that have been admitted in evidence at the conclusion of each party's case in chief and after each party has rested its entire case.
1. No speaking objections or arguments are permitted in the presence of the jury. Counsel shall state the specific legal ground(s) for the objection, and the Court will rule based upon the ground(s) stated. The Court will permit counsel to argue the matter at the next recess.
2. The Court will not assume that any objection made also implies with it a motion to strike an answer that has been given. Therefore, counsel who has made an objection, and who also wishes to have an answer stricken, shall also specifically move to strike the answer.
1. Counsel may use visual aids in presenting the closing argument. However, any proposed visual aids shall be shown to opposing counsel before closing argument.
FAILURE TO COMPLY WITH ALL PROVISIONS OF THIS ORDER MAY BE GROUNDS FOR THE IMPOSITION OF SANCTIONS, INCLUDING POSSIBLE DISMISSAL OF THIS ACTION OR ENTRY OF DEFAULT, ON ANY AND ALL COUNSEL AS WELL AS ON ANY PARTY WHO CAUSES NON-COMPLIANCE WITH THIS ORDER.
IT IS SO ORDERED.
