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Verdier v. Bost

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

April 25, 2019

DOUGLAS VERDIER and ANDREW LONG, Plaintiffs,
v.
GREG BOST and LAURIE BOST, Defendants.

          ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND MOTION FOR EXTENSION OF TIME AS MOOT, AND DECLINING TO EXERCISE SUPPLEMENTAL JURISDICTION

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendants Greg and Laurie Bost's (“Bosts”) motion for summary judgment, Dkt. 47, Plaintiffs Andrew Long (“Long”) and Douglas Verdier's (“Verdier”) (collectively “Plaintiffs”) motion for partial summary judgment, Dkt. 52, and Plaintiffs' motion for extension of time, Dkt. 64. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the Bosts' motion and denies Plaintiffs' motions for the reasons stated herein.

         I. PROCEDURAL HISTORY

         On January 19, 2018, Plaintiffs filed a complaint against the Bosts asserting three causes of action as follows: (1) a violation of the Clean Water Act, 33 U.S.C. § 1251, et seq. (“CWA”) for filling without a permit, (2) a violation of the CWA for an ongoing discharge, and (3) a violation of state water management statutes and other torts. Dkt. 1.

         On July 9, 2018, Defendants filed a motion to dismiss. Dkt. 16. On September 11, 2018, the Court granted the motion in part, denied the motion in part, and granted Plaintiffs leave to amend the complaint. Dkt. 23. The Court dismissed Plaintiffs' first claim and granted Plaintiffs leave to amend. Id. Plaintiffs failed to file an amended complaint.

         On February 27, 2019, the Bosts filed a motion for summary judgment on Plaintiffs' remaining claims, Dkt. 47, and Plaintiffs filed a motion for partial summary judgment, Dkt. 52. On March 13, 2019, Plaintiffs responded and moved to strike the Bosts' “undisclosed experts.”[1] Dkt. 53. On March 18, 2019, the Bosts responded. Dkt. 54. On March 22, 2019, Defendants replied. Dkt. 62. On March 25, 2019, Plaintiffs filed a motion for extension of time to file their reply and filed the reply. Dkts. 64, 65. On March 26, 2019, the Bosts responded to Plaintiffs' motion for an extension of time. Dkt. 67.

         II. FACTUAL BACKGROUND

         This is the latest legal dispute involving Verdier and his neighbors the Bosts. See, e.g., Verdier v. Clark Cty., C15-5700RBL, 2017 WL 2180753, at *1 (W.D. Wash. May 18, 2017), aff'd sub nom. Verdier v. Walker, 745 Fed.Appx. 781 (9th Cir. 2018) (dismissing civil rights claims based on detention after “Verdier turned off the Bosts' water supply [and] threatened to ‘blow away' his neighbor”); Verdier v. Bost, 192 Wn.App. 1066 (2016) (“the Verdiers sued the Bosts to quiet title to the disputed land and [for] damages for the maintenance and use of the [shared] well.”). In this case, Verdier and Long, “an environmental law scholar, ” Dkt. 1, ¶ 4, bring this citizen suit for alleged violations of environmental protection laws. Although Plaintiffs move to strike some of the Bosts' evidence, the relevant facts are mostly undisputed.

         In 2004, the Bosts purchased their property in Washougal, Washington. Dkt. 48, Declaration of Greg Bost, ¶ 1. The house was built in the 1920s, and the Bosts assert the stone retaining walls were originally built at the same time. Id., ¶ 2. One wall is near the property line that the Bosts share with Verdier. Id. In 2012, the Bosts discovered that the wall near the property line was in need of repair. Id., ¶ 3. The Bosts hired a repairman to repack the stones in the wall with mortar. Id. Mr. Bost declares that the repairs did not modify the size or location of the wall. Id.

         In 2016, a Clark County Code enforcement officer visited the Bosts' property in response to a complaint from Verdier. Dkt. 51-1 at 1. The officer reported as follows:

MET WITH THE PROPERTY OWNERS (BOST'S) ON SITE TO VIEW THEIR PROPERTY. THE ONLY RETAINING WALL ON SITE IS MADE OF STONE AND DOWN BY THE RIVER. ITS 4' OR LESS AND HAS BEEN HERE A LONG TIME. NO SIGN OF ANYTHING RECENT BEING BUILT DOWN HERE. NO SIGN OF ANY VIOLATION.

Id. at 2.

         In October 2018, Rebecca Rothwell, a wetlands and shorelands specialist for the Washington Department of Ecology (“DOE”), and James Carsner, biologist and project manager for the United States Army Corps of Engineers (“Corps”), visited the Bosts' property. Dkt. 49, ¶¶ 3, 4. They concluded that the Bosts' retaining wall was located above the Washougal River's ordinary high water mark (“OHWM”) and that the Bosts' repairs to the wall did not require authorization from the DOE or from the Corps. Id.

         In January 2019, the Bosts arranged for a second visit by Ms. Rothwell and Mr. Carsner. Id. ¶ 5. Ms. Rothwell located the OHWM, in consultation with Mr. Carsner, who concurred with the location. Id. The location was surveyed the same day by Daniel Renton, who produced an exhibit drawing illustrating the location of the OHWM in relation to the stone retaining walls. Dkt. 50-2 at 1 (“Renton Drawing”). Although the OHWM is at or near the toe of some of the retaining walls ...


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