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