TagACC(1521)

The Port of Seattle ("Port") submits this opposition to ACC's Motion to Compel Inspection of Port Property. Because the Port has brought its own motion with respect to the site visit, the facts surrounding ACC's request for a site visit, the Port's response and the various communications of counsel regarding the visit have already been set forth in that motion and are incorporated herein by this reference. See Port of Seattle's Memorandum in Support of Its Motion to Compel Depositions and for Limitation on Entry Onto Land at 1:15 - 4:4; Second Declaration of Steven G. Jones ¶¶ 2-7, Exs. A - F. Accordingly, the Port's opposition will be confined to outlining the legal basis upon which ACC's motion should be denied, and limits placed on any site visit ultimately allowed. I. ACC Has Sited No Authority In Support Of Its Demand for an Unlimited Site Visit. The Board will search in vain for any case law in ACC's motion supporting its position that its experts are entitled to go anywhere they wish, photograph anything they want, and sample PORT OF SEATTLE'S OPPOSITION TO ACC'S FOSTER PEPPER _ SItEFELMAN PLLC MOTION TO COMPEL INSPECTION OF PORT 1111 TmRDAVENUE,SUITE3400 PROPERTY - 1 SEATTLE, WASHINGTON98101-3299 206-447-4400 o oo3oo. ORIGINAL anywhere and anything they decide to, without restriction. This is not because no case law exists on this issue; rather, it is because the relevant case law clearly indicates that CR 34(a) was not designed to allow fishing expeditions. Instead, the cases indicate…

The Airport Community Coalition's ("ACC") Motion to Extend the Discovery Schedule contains three requests: (1) to extend the discovery cutoff until February 25, 2002; (2) to extend the time for filing the ACC's final exhibit list to March 1, 2002; and (3) to extend the time for filing the ACC's Prefiled Direct Testimony to March 1, 2002. Ecology agrees that the discovery cutoff should be extended, but only until February 15, 2002. Ecology opposes the ACC's other requests. The ACC has refused to make its experts available for deposition. The ACC also has refused to proceed with depositions of the Port of Seattle's ("Port") witnesses. The ACC noted the Port's witnesses for deposition then refused to proceed with them. The ACC's ECOLOGY'S RESPONSE TO ACC'S 1 ATTORNEYGENERALOF WASHINGTON Ecology Division MOTION TO EXTEND THE DISCOVERY ao Box40117 SCHEDULE Olympia, WA 98504-0117 ORIGINAL reason for canceling the depositions is that it needs to visit the site. However, the ACC's need to visit the site has not prevented it from proceeding with depositions of Ecology's witnesses. Also, the ACC's experts already have provided extensive testimony in this matter without needing a site visit. Because of the ACC's cancellations, there are now too many depositions remaining to be completed by February 1. Therefore, Ecology supports extending the discovery cutoff until February 15, 2002. Ecology opposes the ACC's requests to extend the time for filing its final exhibit list and the time for filing its prefiled direct testimony. The ACC's proposal would unnecessarily compromise…

The Port controls access to the site and has all the data and reports which are the subject of this case. Pursuant to the Pre-hearing Order, the general discovery deadline is February 1, 2002, just nine working days from today's date. The Port is no doubt aware of the discovery schedule. The Port has refused, until January 16, 2002, to even agree to propose dates for site visits and only two days before that, to begin metering out data and reports of its experts. ACC should not be forced to proceed to hearing on such disparate terms. Accordingly, the Board should grant ACC's Motion to Extend the Discovery Schedule. The Port's Opposition is less than forthcoming with all of the facts and circumstances regarding the discovery process. First, the Port's Opposition (p. 2) states that, "ACC has failed to identify or produce a single document in response to the Port's Request for Production" (emphasis added). ACC's Answers and Responses to the Port's Interrogatories are attached as Exhibit U to the Declaration of Michael P. Witek in Support of ACC's Response to Motions to Compel and Limit Entry. ACC objected24 to the broad scope of the Port's requests, but nonetheless identified a number of responsive documents, ACC'S REPLY ON MOTION TO EXTEND HELSELL FETTERMAN LLP Rachael Paschal Osborn DISCOVERY SCHEDULE - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue West Mission Ave. Spokane, WA 99201 R I G ! N Attic, WA98101_2509 2421 AR 004755 including "ACC's Notice…

v. ) ACC'S REPLY ON MOTION TO COMPEL ) INSPECTION OF PORT PROPERTY DEPARTMENT OF ECOLOGY; et al., ) ) Respondents. ) ) The Port controls the site and is doing everything in its power to restrict ACC's inspection of the soil, wetlands and streams located therein. This leads to the obvious question: what is the Port trying to hide? The Port has given unrestricted access numerous times to Ecology staff, Port consultants and contractors. Yet, ever since ACC's November 26, 2001, CR 34 Request for Entry, the Port has thrown up every obstacle imaginable to block access.15 Even in its opposition brief, the Port continues to insist that ACC's demand for a site visit is unprecedented ] because ACC wants to inspect and sample project area wetlands, surface waters and soils. The Port engages in this fiction in spite of the plain language of CR 34, which expressly provides that any party may serve on any other party a request : to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of rule 26(b). CR 34(a)(2) (emphasis added). The Board need look no farther than the authorities cited in ACC's l AR 004752 See Port Opposition at pp. 1-3. ACC'S REPLY ON MOTION TO COMPEL HELSELL FETTERMAN LLP Rachael Paschal Osborn INSPECTION…

v. ) MEMORANDUM ON ITS MOTION TO ) COMPEL DEPOSITIONS AND FOR STATE OF WASHINGTON ) LIMITATION ON ENTRY ONTO LAND DEPARTMENT OF ECOLOGY, and ) THE PORT OF SEATTLE, ) ) Respondents. ) ACC's response to the Port's motion to compel ACC to make its witnesses available for deposition and to agree to reasonable restrictions on a site visit is both typical of ACC's past approach and completely consistent with ACC's strategy of pushing out discovery as far as possible. In a Response which the Board's Prehearing Order limited to 7 pages, ACC spends fully pages misstating the Port's position, accusing the Port of bad faith, and incessantly complaining about the Port's failure to provide dates I for a site visit. Amidst all the vitriol and recrimination, ACC's Response fails to acknowledge the following salient facts that have a direct bearing on both the discovery dispute and the parties' ability to prepare for the hearing on the merits in March: _ACC incorrectlycomplainsthat thePorthas failedto offerdatesfora sitevisitnofewerthan 5 timesin its 9-page Response(1:21;2:27;2:20;4:5 and9:19). ThePortinitiallywaitedto providedatesin the vainhopethat ACCwould agreeto reasonablerestrictionson its sitevisit. However,in a lettersentandreceivedpriorto ACC'sresponse,the Portofferedtwo datesforsucha visit: January25 andJanuary28. Consistentwith its strategyof stiflingdiscovery, ACCpromptlyrejectedboth ofthosedatesin a lettersentonJanuary17. PORTOF SEATTLE'SREPLYONITSMOTIONTO FOSTERPEPPER __4SHEFELMANPLLC COMPEL DEPOSITIONS AND FOR LIMITATION ON 1111 THIRD AVENUE, SUITE 3400 SEATTLE, WASHINGTON 98101-3299 ENTRYONTOLAND- 1 206-447-4400 ORIGINAL AR 004748 • ACC has not produced a single document in this case;2 • Despite having failed to obtain any protective order or bring a motion to compel a…

On January 22, 2002, the Board heard arguments on the following four motions pending before it: 1. ACC's motion to compel inspection of Port property; 2. ACC's motion to extend discovery schedule; 3. Port's motion to compel depositions and for limitation on entry onto land 4. Port's motion to compel production of documents and response to subpoena duces tecum. The Board reviewed the motions before it, along with all responsive and reply briefs submitted by the parties. The following attomeys participated in the telephone hearing: 1. Richard Poulin, representing CASE; 2. Tom Young, representing Ecology; 3. Kevin Stock, Michael Witek and Rachel Paschal Osborn, representing ACC; and PCHB 01-160 1 ORDER ON DISCOVERY AND MODIFYING THE PRE-HEARING DEADLINES AR 004740 4. Roger Pearce and Gil Reavis, representing the Port. Kaleen Cottingham presided for the Board. Randi Hamilton, of Gene Barker and Associates, provided court-reporting services. Based on this review and being otherwise fully apprised in the circumstances of this case, the Board enters the following order: 1. ACC's motion to compel inspection of Port property The parties, having been unable to negotiate appropriate conditions to allow a site visit of the Port's property, sought Board intervention to resolve this discovery dispute. Also related to the site visit is the timing of the depositions of ACC's expert witnesses and the production of documents relied upon by such experts. All of these issues are addressed in this order. The Port contends that heightened security warrants heightened controls on entry to its airport…

STATE OF WASHINGTON, ) Related to Construction of a Third DEPARTMENT OF ECOLOGY; and ) Runway and related projects at Seattle THE PORT OF SEATTLE, ) Tacoma International Airport) ) Respondents. ) ) Michael P. Witek declares as follows: 1. I am one of the attomeys for the Airport Communities Coalition. I make this declaration based on personal knowledge and am competent to do so. 2. Attached to this declaration are true and correct copies of the following documents: Exhibit A: Page 1 and Section I, pages 22-25 of the Section 401 Water Quality Certification #1996-4-02325, issued by the State of Washington, Department of Ecology on September 21,2001. Exhibit B: Pages 1,260, 261 and 262 of the Deposition of Ray Hellwig January 8, 2002. SECOND DECLARATION OF MICHAEL P. HELSELL FETTERMAN LLP Rachael Paschal Osborn WITEK IN SUPPORT OF ACC'S MOTION a500PugetSound Plaza AttorneyatLaw FOR SUMMARY JUDGMENT - 1 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL ,,.oo, o Exhibit C: Application for Change/Transfer of Water Right, Submitted by the Port of Seattle to the State of Washington Department of Ecology on June 22, 2000. Exhibit D: Page 3.3-14 of the Wallula Power Project EFSEC Application, October 2001. Exhibit E: Pages land 15 of the Declaration of Ann Kenny, Dated October 1, 2001. Exhibit F: Pages 1, 30 and 31 of the Deposition of Edward O'Brien, December 21, 2001. Exhibit G: Cover letter and Page 1 of King County Department of Natural Resources "Review…

v. ) ACC'S REPLY ON MOTION FOR ) SUMMARY JUDGMENT REGARDING STATE OF WASHINGTON, ) THE ABSENCE OF A WATER RIGHT FOR DEPARTMENT OF ECOLOGY; and ) THIRD RUNWAY § 401 CERTIFICATION7 THE PORT OF SEATTLE, ) ) Respondents. ) ) I. Introduction 1a ACC submits this brief in support of its Motion for Summary Judgment Regarding the Absence of a Water Right for Third Runway § 401 Certification, and in reply to the Port' s Memorandum in Opposition and Ecology's Response. II. Statement of Facts A. The Material Facts Relevant to this Motion Are Not in Issue. No genuine issues of material fact are present in this motion. The Third Runway Project will lead to construction of significant amounts of new impervious surfaces, disrupting19 2o hydrology in streams adjacent to Sea-Tac Airport. Port Br. at 2. The impacts of this construction include depleting stream flow in at least two streams adjacent to the airport, Des Moines and Walker Creeks, during the summer period. Id. The Port is required to mitigate for these impacts. Second Declaration of Michael P. Witek in Support of ACC's Motion for Summary Judgment (hereinafter "2ndWitek Decl."), Exh. ACC'S REPLY ON MOTION FOR SUMMARY HELSELL FETTERMAN LLP Rachael Paschal Osbom JUDGMENT - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. L Spokane, WA99201i'_ _.',_f/_!A Seattle, WA 98101-2509 AR 004685 A (Section 401 Water Quality Certification #1996-4-02325, Section I, pp. 22-25 (9/21/01)). In order to do so, the Port proposes…

ACC incorrectly claims that the Port is seeking privileged documents or documents of the Port's own making. In fact, the Port is seeking only what is required under Civil Rule 26(b)(5) - any documents, studies, data or calculations upon which the ACC's experts are basing their opinions in this case. The Port has produced 22 boxes and 23 compact discs and 4 hard diskettes of documents to the ACC. The ACC has not produced a single document. The Board should not countenance ACC's one- sided litigation tactics, where the Port gives ACC all the supportive documents for the Port's experts, but ACC leaves the Port to guess what ACC's experts will rely on as a basis of their opinions. ACC's only argument is that it is "unduly burdensome" for the ACC to have to produce the documents upon which its experts will rely. ACC has failed to cite a single case supporting this position and, as discussed below, ACC's position is directly contrary to case law. Moreover, even a ORIGINAL PORT'S MOTION FOR PARTIAL SUMMARY FOSTER PEPPER _ SHEFELMAN PLLC JUDGMENT ON SEPA ISSUE - 1 1111 THIRDAVENUE,SUITE3400 AR 004678 SEATTLE,WASrlINGTON98101-3299 50300771.01 206-447-.4400 cursory examination of the declarations submitted by ACC's witnesses thus far that those experts have relied on a wide range of books, surveys and alleged data that has not been supplied to the Port. Given the many references to studies in ACC's declarations, it is clearly not possible for the Port to obtain these documents by other…

am over the age of 18 years and am competent to testify as to the matters contained herein, and that all statements made herein are based upon my own personal knowledge. Attached are true and correct copies of the following documents: 1. Amended Final Findings of Fact Conclusions of Law and Order, Public Utility Dist. No. 1 of Pend Oreille Cy. v. Dep 't of Ecology, PCHB Nos. 97-177, 98-043, and 98-044. 2. Order denying Petitioner's Motion for Discretionary Review, Public Utility Dist. No. 1 of Pend Oreille Cy. v. Dep 't of Ecology, Supreme Court No. 67449-3. AR 004654