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Crystal Conservation Coalition v. Crystal Mountain Inc.

United States District Court, W.D. Washington, Seattle

May 29, 2018

CRYSTAL CONSERVATION COALITION, Plaintiff,
v.
CRYSTAL MOUNTAIN, INC., Defendant

          ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND AWARDING FEES

          ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on the parties' cross motions for summary judgment. Dkt. # 29 and # 31.[1] When this case was originally filed in 2006, plaintiff, a non-profit corporation whose members use and enjoy the lands and waters in the vicinity of the Crystal Mountain Ski Resort, sought a declaration that defendant, the owner of the resort, had violated the Clean Water Act. Eight days later, the parties submitted a joint motion for entry of a negotiated consent decree in which defendant agreed to, among other things, (a) apply for a National Pollutant Discharge Elimination System permit for its wastewater treatment plant discharge, (b) complete specified projects related to Silver Creek and surface water runoff by October 31, 2010, and (c) develop and build a state-of-the-art wastewater treatment facility by October 31, 2011. Dkt. # 10 at 4-7.

         In June 2013, the parties were back before the Court. Plaintiff alleged that defendant had failed to timely develop the wastewater treatment plant and complete one of the projects specified in the consent decree. The parties negotiated a modified consent decree (“MCD”) which was approved and signed by the Court. Dkt. # 16. In the MCD, plaintiff agreed to waive and release any claims that had been asserted in the underlying complaint and any claims arising from the alleged breaches of the first consent decree. In exchange, defendant agreed to, among other things, have a fully operational new waste water treatment plant by August 31, 2013, retain an expert to design and engineer a stormwater management plan for the resort that included specific features for each parking area and a work road, and implement certain riparian restoration projects. A draft stormwater management plan was to be submitted to plaintiff for review by July 15, 2013, and the plan was to be fully implemented by October 31, 2013, except for elements to which plaintiff objected or if defendant gave timely, written notice of a force majeure event.[2]

         On April 12, 2017, plaintiff moved to reopen the case, alleging violations of the MCD. Dkt. # 17. Plaintiff seeks a summary determination that defendant breached its agreement with plaintiff and the terms of the Court's order in five different ways, each of which is discussed below. Defendant offers various justifications for the violations and seeks a summary determination that plaintiff failed to comply with the MCD's dispute resolution procedures and is therefore not entitled to relief.[3]

         (1) Stormwater Infrastructure: failure to install required stormwater infrastructure in parking lots B, D, E, and F and on the work road to former Chair 1

         In the MCD, defendant agreed to implement specific stormwater management features for each parking lot and a work road. In parking lot D, for example, defendant promised to “upgrade the existing collection swale to include two new catch basins and oil/water separators, and . . . upgrade the existing stormwater pond to an enhanced pond.” Dkt. # 16 at 7. Neither of these requirements has been satisfied. Dkt. 30-5 at 9. Defendant also admits that it has failed to install required features in parking lots B, E, F, and along the work road to former Chair 1 (separate and apart from the grass-lined collection swales discussed below). Dkt. # 30-5 at 7-11.

         Defendant vaguely asserts that its continuing failure to implement the stormwater management features to which it agreed was caused by weather conditions in the summer of 2013. According to defendant, the high cloud cover precluded an aerial topographic survey of the project area and delayed the design and engineering of the stormwater management plan long enough that there was insufficient time remaining in the 2013 construction season to implement the project. Even if true, [4] the appropriate course of action would have been to give written notice of a force majeure event (if defendant believed it could support such a claim) and/or to request a modification of the explicit deadlines set forth in the MCD. Instead, defendant simply ignored a Court order and breached its negotiated agreement with plaintiff, exposing it to exactly the sort of claims asserted here. See Hook v. State of Ariz., 972 F.2d 1012, 1016-17 (9th Cir. 1992) (discussing methods by which a consent decree can be modified and disapproving the State's decision to ignore the district court's decree even where there was a strong argument in favor of modification).

         In addition, the continuing delay from 2014 to 2017 cannot be justified under the terms of the MCD. Once it was clear that the stormwater management plan (“SWMP”) would not be finalized, much less implemented, by October 2013, defendant developed a schedule for the completion of the project and a “final” plan was submitted to plaintiff for review in January 2014.[5] Pursuant to the MCD:

Within one week of receipt of the draft SWMP, [plaintiff and defendant] shall meet and confer regarding the draft SWMP. If [plaintiff] objects to any portion of the draft SWMP, [plaintiff and defendant] shall mutually select a stormwater expert, retained at [plaintiff's] expense, to review [plaintiff's] objection and [defendant's] responses to such objections, and to make recommendations to ensure that the final SWMP complies with the requirement of paragraph 10.f of this Decree. [Defendant's] failure to incorporate recommendations of the stormwater expert selected pursuant to this paragraph in its final SWMP shall create a rebuttable presumption that [defendant's] final SWMP violates this decree. [Defendant] shall fully implement the final SWMP no later than October 31, 2013, except that (1) [defendant] shall not be required to implement elements of the SWMP by October 31, 2013, that are subject to [plaintiff's] objections, and (2) [defendant] shall not be required to implement the SWMP by October 31, 2013, if a Force Majeure Event occurs, as defined in paragraph 11 of this Decree.

Dkt. # 16 at 8-9. By mid February 2014, plaintiff had raised objections to the plan - primarily related to the size of the stormwater ponds compared to the size of the catchment area and the lack of vegetative filtering - and hired an expert to provide recommendations on how to address the perceived problems. Dkt. # 30-10 at 3-4; Dkt. # 30-29 at 2-3. Defendant concluded that the recommended changes were not required by the MCD. Dkt. # 30-30 at 2-4.

         Contrary to defendant's position, plaintiff's objection to the proposed SWMP did not indefinitely stay implementation of the plan. First, an objection delays the implementation deadline only for the design element that is the subject of the objection. Dkt. # 16 at 9. To the extent defendant has failed to implement elements of the SWMP that have nothing to do with the stormwater pond designs and vegetation (such as the project along the work road to former Chair 1), it has breached the MCD. Second, the MCD provides that when an objection is raised, the parties must consult and, if a mutually satisfactory resolution is not reached, a rebuttable presumption arises that the plan violates the MCD. Plaintiff, with defendant's knowledge and consent, hired an expert whose recommendations defendant rejected.[6] Thus, as of the spring of 2014, Defendant was free to move forward with the plan as proposed, the only caveat being that it would have the burden of showing that the steps taken satisfied the MCD. It chose not to do anything: portions of the plan remain incomplete, as defendant admitted during discovery.

         (2) Swale Design: unilateral substitution of quarry spalls for the required grass-lined collection swales in parking lots B, C, F, and adjacent to the Silver Ski Condominiums

         Defendant admits that it has not installed grass-lined collection swales in parking lots B, C, F, and adjacent to the Silver Ski Condominiums. Dkt. # 30-5 at 7-8, 10. In its discovery responses, defendant claimed that chipped stone would work better in the swales associated with lots B, C, and the Condominiums and that grass-lined swales are not practical in lot F. Id. In its memorandum, defendant reports that it chose to install a combination of quarry spalls and wetland plants, such that the swales are “becoming wetland basins and are recruiting wetland plants.” Dkt. #31 at 16-17. Whatever the perceived benefits of defendant's unilateral decision to use rocks and/or wetland plants in place of grasses (or to forego a lining altogether), defendant ignored the clear and specific terms of the Court's order and breached its negotiated agreement with plaintiff.

         (3) Riparian Restoration Projects: failure to implement the riparian restoration projects in parking ...


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