IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA BUTTE DIVISION
COTTONWOOD ENVIRONMENTAL LAW No. 2:20-CV-00028-BMM CENTER,
Plaintiff,
ORDER v.
BIG SKY WATER AND SEWER DISTRICT; BOYNE USA, INC.,
Defendant.
INTRODUCTION Plaintiff Cottonwood Environmental Law Center (“Cottonwood”) filed a motion to vacate the judgment of the Court. (Doc. 235.) Cottonwood bases its motion on the theory that Defendants committed fraud on the Court by hiding evidence during the 2022 trial. (See Doc. 236.) Defendant Big Sky Water and Sewer District (“BSWSD”) opposes the motion. (Doc. 238.) Cottonwood also filed a motion to strike a sur-reply filed by BSWSD in response to Cottonwood’s reply to the motion to vacate. (Doc. 243.) BSWSD opposes that motion. (Doc. 247.) The Court held a hearing on June 9, 2025. (Doc. 261.) 1 FACTUAL AND PROCEDURAL BACKGROUND The motions before the Court stem from a Clean Water Act lawsuit that Cottonwood initiated in July 2020. (See Doc. 1.) Cottonwood tried its claim against
BSWSD before a jury in April 2022. Cottonwood sought to pre-admit Exhibit 112 and Exhibit 113 at the final pre-trial conference. (Doc. 1124-2 at 2.) The Court admitted Exhibit 112 and Exhibit 113 without objection. (Docs. 132; 139 at 1; and
145 at 1.) Cottonwood acknowledged before trial that Exhibit 112 and Exhibit 113 were duplicate Excel spreadsheets: “We accidentally duplicated. We put 112 and 113 in there, and they’re essentially the same thing.” (Doc. 159 at 82.) Exhibit 112
and Exhibit 113 are Excel spreadsheets that contain data reflecting, among other things, water that BSWSD exported from its holding pond to the Yellowstone Club and Spanish Peaks to be used to irrigate golf courses there. (Doc. 159 at 11-12.) Cottonwood sought, immediately before jury selection, to introduce Exhibit
119. Cottonwood explained that Exhibit 119 represented another Excel spreadsheet provided by BSWSD that contained data regarding BSWSD’s export of water from its holding pond for irrigation. (Id. at 81.) Cottonwood justified the admission of
Exhibit 119 on the basis that “it contains variables not included in 112 – 113.” (Id. at 82.) The Court declined to admit Exhibit 119 after BSWSD objected on the grounds that it had not had time to review the entirety of the extensive Excel spreadsheet to confirm that it matched the data in Exhibit 112 and Exhibit 113: 2 I will not admit this exhibit – Mr. Meyer, I’m not going to admit [Exhibit 119] until you complete your – until the witness completes his testimony about it so I can make sure that there are no errors or mistakes in it.
(Id. at 84.) The Court allowed Cottonwood to use Exhibit 119 during its questioning of its expert witness. (Id.) The Court declined to admit Exhibit 119, however, due to concerns raised by BSWSD regarding its completeness. (Id.) The jury returned a verdict in favor of BSWSD. (Doc. 142.) Cottonwood moved for a new trial, claiming, among other things, that BSWSD had presented false evidence at trial. (Doc. 173.) The Court denied Cottonwood’s motion. (Doc. 198.) Cottonwood appealed issues related to the Court’s summary judgment orders
and jury instructions. (Doc. 210.) The Ninth Circuit affirmed. See Cottonwood Evn’t L. Ctr. v. Edwards, 86 F.4th 1255, 1264 (9th Cir. 2023). Cottonwood petitioned for rehearing en banc, and that petition was denied. Cottonwood Evn’t L. Ctr. v.
Edwards, No. 22-36015, 2024 U.S. App. LEXIS 674 (9th Cir. Jan. 10, 2024). Cottonwood sought relief tangential to the above litigation in other venues. Cottonwood sued BSWSD and its former general manager, Ron Edwards, and the Montana Department of Environmental Quality (“DEQ”) in Montana state district
court. (See Doc. 238-1.) The Montana state district court dismissed claims against BSWSD and Edwards and granted summary judgment to DEQ. (See Doc. 238-2; Doc. 238-3.) Cottonwood also filed administrative complaints with DEQ, and the
United States Environmental Protection Agency (“EPA”) related to the above 3 litigation. DEQ declined to pursue Cottonwood’s claims as “evidence did not support the allegation the Ponds were leaking in excess of the design standard; or
that the Golf Course is being over irrigated.” (Doc. 238-4.) The EPA also declined to pursue Cottonwood’s claims stating that there were “no ongoing investigations regarding this matter” and “the information cited in the portion of the email exchange
excerpted in the court’s order has not resulted in the EPA changing the conclusions and recommendations in its February 8, 2024 NPDES Inspection Report.” (Doc. 238-5 at 7.) Cottonwood now alleges that BSWSD presented false evidence at the 2022
trial. (See Doc. 236.) Cottonwood also has initiated a separate civil action alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), against Edwards and BSWSD’s counsel, Jonathan Rauchway. (See Doc. 238-6.)
Cottonwood raises claims in its civil RICO action that relate to Cottonwood’s allegations in the instant matter. (Id.) LEGAL STANDARD Federal Rule of Civil Procedure 60(b) allows a court to relieve a party from a
final judgment if the opposing party committed fraud. Fraud on the court typically involves “fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.” United States v. Buck, 281 F.3d 1336, 1342 (10th Cir. 2022). A high standard exists to 4 establish a fraud on the court claim. A party must show “newly discovered” misconduct that qualifies as “egregious.” United States v. Sierra Pac. Indus., Inc.,
862 F.3d 1157, 1168 (9th Cir. 2017); Trendsettah USA, Inc. v. Swisher Int’l, Inc., 31 F.4th 1124, 1132–34 (9th Cir. 2022). The complaining party must show misconduct through clear and convincing evidence. United States v. Stonehill, 660 F.3d 415,
443–44 (9th Cir. 2011). DISCUSSION I. Motion to Vacate Cottonwood presents two different theories on how BSWSD committed fraud on the court. The Court will address each in turn. Cottonwood argues first in its brief in support that BSWSD falsified data regarding how much water BSWSD exported for irrigation to Spanish Peaks and the Yellowstone Club in 2020. This
export data affected the leakage rate that Cottonwood’s expert presented to the jury. (Doc. 236.) Cottonwood also presents a new theory of fraud related to the water export data contained in Excel spreadsheets in Exhibit 112 and Exhibit 113.
BSWSD did not falsify data. BSWSD recorded data regarding water exported from its holding pond to neighboring golf courses for irrigation. BSWSD presented evidence at trial that Cottonwood incorrectly calculated leakage rates when Cottonwood failed to account for water exported for irrigation to golf
courses at Spanish Peaks and the Yellowstone Club. (Doc. 160 at 69–72.) The 5 meter used to monitor the volume of water that BSWSD exported to Spanish Peaks and the Yellowstone Club was fully operational. BSWSD recorded the irrigation
export data. The recorded data supported the evidence BSWSD presented at trial. (Doc. 238-7, ¶¶ 6–10; see also Doc. 160 at 65–71.) Cottonwood possessed this data from BSWSD and included it in its Trial
Exhibit 112. (See Cottonwood’s Trial Exhibit 112; see also Doc. 238-7 at 18–20.) Cottonwood confuses the meter that measured the exports to Spanish Peaks and the Yellowstone Club with a meter on the South Loop that measured exports to the Meadow Village Golf Course. Flooding in the area in 2020 temporarily disabled
the meter recording exports to the Meadow Village Golf Course. (Doc. 238-7, ¶¶4– 10.) BSWSD estimated the volume of water measured by the South Loop meter during the outage in 2020. BSWSD used none of this estimated data of irrigation
water exported to the Meadow Village Golf Course in 2020 at trial to rebut Cottonwood’s leakage data. (Id.; see also Doc. 159; Doc. 160.) Cottonwood presents a new theory in its reply brief that BSWSD provided falsified data via an Excel spreadsheet tracking the volume of water exported to
Spanish Peaks and Yellowstone Club during the 2020 non-irrigation season. (Doc. 239.) Cottonwood points to two spreadsheets, Exhibit 112 and Exhibit 119, one that it calls “real,” and one that it calls “fake.” (Id. at 3; see also Doc. 240 at 44–
47.) Cottonwood contends that the real spreadsheet, Exhibit 119, shows that 6 BSWSD exported 3.474 million gallons of water to Spanish Peaks during the 2020 non-irrigation season. (Id.) The alleged real spreadsheet, Exhibit 119, indicates that
BSWSD exported no water to Spanish Peaks after November 4, 2020. (Id. at 4.) Cottonwood claims the second spreadsheet, Exhibit 112, shows falsified export data to Spanish Peaks and Yellowstone Club after November 4, 2020, indicating
that BSWSD exported 12.06 million gallons of water to Spanish Peaks and Yellowstone Club. (Id. at 4–6.) Cottonwood is again mistaken. Cottonwood identified three spreadsheets as trial exhibits. The spreadsheets are nearly identical. The difference between each
spreadsheet is temporal. Each subsequent spreadsheet corresponds to a specific date and the data in each spreadsheet is updated with new data. The Court admitted two of the spreadsheets at trial, Exhibit 112 and Exhibit 113, upon Cottonwood’s
motion. (Doc. 145.) BSWSD provided these two spreadsheets to Cottonwood during discovery. An examination of the trial transcript confirms the timeline. The Court asked the parties at the pre-trial conference whether any evidentiary issues needed to be discussed:
COTTONWOOD: Your Honor, there is one issue. We had filed two exhibits and they are nearly identical.
THE COURT: Who filed them?
COTTONWOOD: Plaintiffs filed two exhibits, Numbers 112 and 113, and those are nearly identical. They’re 7 Excel spreadsheets. And we had intended to submit the different Excel spreadsheet that was provided to us. So we –
* * *
THE COURT: What do you mean? Who gave you this? Is this your expert?
COTTONWOOD: No, no. This was obtained during discovery. It was provided to us by the defendants. (Doc. 159 at 11.) Cottonwood confirmed that it filed Exhibit 112 and Exhibit 113 with the Court. (Id.) Cottonwood further confirmed that BSWSD provided Exhibit 112 and Exhibit 113 “during discovery.” (Id.) BSWSD objected to the introduction of Cottonwood’s new exhibit, Exhibit 119, on the ground that BSWSD had not had sufficient time to verify its accuracy: BSWSD: My understanding of these is that they’re datasets that the district maintains that are updated periodically. And there were two different versions of it, which plaintiffs listed on their exhibit list [Exhibit 112 and Exhibit 113], which we’ve now had a chance to look at it and agree. We’ll stipulate those should come into evidence. This other one [Exhibit 119], I don’t know what it is. I don’t know if it was a draft. I don’t know if it was incomplete.
(Id. at 12) (emphasis added). The data contained in 119 appears to be incomplete as it shows no water exports from BSWSD for irrigation to Spanish Peaks and Yellowstone Club after November 4, 2020. (See Doc. 239 at 4.). As was explained at trial and in BSWSD’s briefing, however, BSWSD periodically updates the data in the spreadsheet regarding water exported for irrigation. (Doc. 159 at 12; Doc. 8 242-1 at 5.) Cottonwood apparently used Exhibit 119 to develop a water budget (Exhibit 111) prepared by Cottonwood’s expert. Cottonwood’s expert, in turn, used
Exhibit 111 to calculate the volume of water that allegedly leaked into the West Fork Gallatin River from the BSWSD holding pond. (See Cottonwood’s Trial Exhibit 111.)
The parties again discussed the issue of water export data and Exhibit 119 later in the day: COTTONWOOD: Your Honor, in order to discuss the water budget in 111, we’re going to need Exhibit 119, which we discussed earlier.
THE COURT: What is 119?
COTTONWOOD: 119 is the export data provided to us by the sewer district.
(Doc. 159 at 80–81.) BSWSD reasserted its objection to Exhibit 119 due to its inability to verify its completeness: BSWSD: If this is the entirety of a document we produced, we wouldn’t have an objection to it. But it’s a big document, a big spreadsheet, and I haven’t had time to look at it. I can represent to the Court that all of the data in 119, if it’s the complete version of it, is also in the Exhibits 112 and 113, that are already in evidence on plaintiff’s exhibit list.
So our objection is that this was never listed as an expert on their trial exhibit list, and we haven’t had a chance to go through it and make sure that it’s complete and correct.
9 (Id. at 81.) Cottonwood explained its need to admit Exhibit 119 despite its earlier admission of Exhibit 112 and Exhibit 113:
COTTONWOOD: I don’t believe that [Exhibit 112 and Exhibit 113] have all of the variables that were used in Mr. Aley’s 2020 water budget, Your Honor.
THE COURT: The 2020 water budget is Exhibit 111?
COTTONWOOD: That is the budget [Mr. Aley] put together, but [Mr. Aley] used Big Sky’s water numbers to create that budget.
THE COURT: Well, where are those numbers? In 119?
COTTONWOOD: Yes, 119 and 112.
(Id. at 81–82.) Cottonwood failed to disclose what “variables” Exhibit 112 and Exhibit 113 lacked that Cottonwood believed were contained in Exhibit 119: THE COURT: Exhibit 112 and 113 are the same document?
COTTONWOOD: Nearly the exact same. One is updated by a few months with a couple new –
THE COURT: Which one is supposed to be 119?
COTTONWOOD: 113 was supposed to be 112; 119 was supposed to be 113.
THE COURT: So 113 is for what year?
COTTONWOOD: 113 covers many. It just doesn’t cover all the variables.
10 THE COURT: And 119 differs how?
COTTONWOOD: It covers variables that are not included in 112 -- 113.
THE COURT: So, Counsel, you don’t know what information differs? Is that the concern here?
BSWSD: I only have that concern because I haven’t had a chance to look at what this document is. I can tell you that this is a spreadsheet that’s just added to. So if -- well, whatever data is in 119, if it were a complete copy, would be in 112 and 113. 119 is the February version, 112 is the July version, and 113 is the October version of the same spreadsheet, or it should be anyway.
(Id. at 82–83) (emphasis added). The Court allowed Cottonwood to use Exhibit 119 to questions its expert, but did not admit Exhibit 119: THE COURT: Mr. Rauchway, I want to make sure you're clear on my order. I'm going to allow Mr. Meyer to begin questioning using Exhibit 119. If you believe any information is incorrect or differs or hadn't been disclosed, please raise an objection. If necessary, I will order the testimony struck. I will not admit [Exhibit 119] -- Mr. Meyer, I'm not going to admit [Exhibit 119] until you complete your -- until the witness completes his testimony about it so I can make sure that there are no errors or mistakes on it.
(Id. at 83) (emphasis added). Cottonwood proceeded with direct examination of its expert, Thomas Aley. Cottonwood and Aley discussed the water budget in Exhibit 111 calculated by Aley based on BSWSD’s water export data recorded in Exhibit 119. The data in Exhibit 119 did not include updated data of water exported by BSWSD from its 11 holding pond to the Yellowstone Club and Spanish Peaks that occurred after November 4, 2020, during the non-irrigation season:
COTTONWOOD: Okay. And tell us about the change in storage.
MR. ALEY: Change in storage is line 5. December 15, there was -- December 15, 2019, there was 6.17 million gallons; December 12, 2020, 18.51 million gallons. So the difference between the two is 12.34. That shows the amount of water that has gone into storage [. . .] The total change in storage is lines 5 plus 6 plus 7. So that’s 12.34 million gallons. Next is water exports. The exports, this is all Big Sky Water and Sewer District data. Irrigation water to the north loop of the Meadow Village Golf Course was 97.294 million gallons during the year. Line 10 is irrigation water that went to the south loop of the golf course. Again, the sewer district data, it was 19.166 million. Export of effluent to Yellowstone Club and Spanish Peak, this is another area that the sewage is going to -- or the -- yes, the sewage is going to. That’s 16.212 million gallons in the year. . . . * * *
COTTONWOOD: Mr. Aley, have you seen this [Exhibit 113] before?
MR. ALEY: Yes.
COTTONWOOD: What is this?
MR. ALEY: This is part of the Excel data sheets giving data by columns and by dates. This is data for 2018.
COTTONWOOD: So that table there, go over to 2020, at the bottom there, it says, “159.29.” Can we go back to Exhibit [1]11? Do those 12 numbers add up there? They don’t add up. In here, it says, “171.32” for 2020. So the numbers don’t quite appear to -- don’t quite appear to match up. Can you tell me where you got that [1]71.32 number from?
MR. ALEY: You will see in the box on the upper left corner, 2020 -- oops, don’t blow it up too much. 171.32 is on the bottom. Yearly total, line 2020 -- yes, 171.32 million gallons. So that’s where that number comes from.
(Id. at 89–93) (emphasis added).
BSWSD asked Cottonwood’s expert on cross-examination about the source that Cottonwood used to determine the volume of the effluent exports to the Yellowstone Club and Spanish Peaks. Aley admitted that his water budget (Exhibit 111) neglected to include water export data to the Yellowstone Club and Spanish Peaks during the non-irrigation season displayed in Exhibit 112 and Exhibit 113. Aley’s mistake in not including this data resulted in inaccurate water leakage data: BSWSD: You realize, Mr. Aley, that this data [Exhibit 119] only covers the irrigation season, which in 2020 was May 4th to October 12th? Do you realize that?
BSWSD: But you didn’t realize that the district pumps water from its storage ponds to Yellowstone and Spanish Peaks all year round, not just during the irrigation season. You didn’t realize that, did you?
13 MR. ALEY: We took that into account in some of the revised sheets. We did catch that.
BSWSD: You made a mistake?
MR. ALEY: Yep.
BSWSD: Let’s look at the same exhibit, actually. Just the tab YC/SP flows. This is the spreadsheet you worked from right?
BSWSD: Did you look at this tab in the spreadsheet when you did your water budget?
MR. ALEY: Let’s see. We may -- I think we picked this one up in our revised one, but it was not in the one we’re looking at now, if I’m correct on that. Yes, we did discover that there was another tab that covered exports during the non-irrigation season.
BSWSD: Let’s take a look at that. Do you see that column that says, “Yellowstone, Pump Station 1, millions of gallons”? And you see there that the district started pumping to Yellowstone in January of 2020, and continued all the way through March of 2020?
BSWSD: And none of that is during the irrigation season, is it, Mr. Aley?
MR. ALEY: No that’s non-irrigation.
BSWSD: And none of those volumes are captured in your water budget, are they?
MR. ALEY: No. 14 BSWSD: And moving over to Spanish Peaks column, you will see that district pumped from the ponds to Spanish Peaks starting in late October of 2020, and continuing all the way until just before Christmas. None of that’s during irrigation season, is it?
MR. ALEY: That’s correct.
BSWSD: And none of those volumes are captured in your water budget, are they, Mr. Aley?
MR. ALEY: They were captured in the revised one [Exhibit 112], but they were not captured in the one [Exhibit 119] we’re looking at here.
BSWSD: These aren’t small amounts, are they, Mr. Aley?
MR. ALEY: No.
BSWSD: If you just look at the volume pumped to Yellowstone from January to March of 2020, and you can see that the Excel program handily adds them up for us. If you look in the lower right-hand corner, that’s 18.097 million gallons that you missed. Isn’t that right, Mr. Aley?
MR. ALEY: That’s what the number shows.
BSWSD: Okay. And that nearly wipes out the entirety of the opinion you just gave to this jury that 21 million gallons above DEQ standard are leaking from these ponds, doesn’t it?
MR. ALEY: We caught that error in our revised ones, but that is the error.
(Id. at 129–32) (emphasis added). Cottonwood’s expert conceded that Cottonwood’s failure to include export data for irrigation from the holding pond to 15 the golf courses at Yellowstone Club and Spanish Peaks resulted in errors in Cottonwood’s water budget in Exhibit 111:
BSWSD: Yes. Line 11 in your water budget where it says 16.212 million gallons, that’s wrong, isn’t it?
MR. ALEY: Yes, it’s wrong.
BSWSD: And that makes your total of 148.55 gallons, that’s wrong too, isn’t it?
BSWSD: And your 21.12 million gallons, that’s wrong also, isn’t it?
MR. ALEY: That it is.
(Id. at 132.) This testimony refutes Cottonwood’s theory of fraud. Cottonwood made no effort on redirect examination of Mr. Aley to address the issue of the alleged hidden tab. (Id. at 132–33.) Cottonwood instead limited its redirect examination of Mr. Aley to five questions about BSWSD’s aeration pond. (Id.) The questioning of BSWSD’s witness on the second day of trial further disproves Cottonwood’s theory of fraud. BSWSD questioned its former general manager Ron Edwards about exports to the Yellowstone Club and Spanish Peaks. (Doc. 160 at 70.) BSWSD asked Edwards about data in Exhibit 112: BSWSD: Okay. So we can accept those numbers for this purpose. And then line 11, that’s the amount of water pumped to Yellowstone and Spanish Peaks for -- should be for the entire year; right? 16 MR. EDWARDS: It should be. That’s just the irrigation season.
BSWSD: The number Mr. Aley has is just the irrigation season?
MR. EDWARDS: Yes.
BSWSD: All right. So let’s go back to the tab, YCSP flows. Okay. Now, the Yellowstone Pump Station 1 column, that shows the district’s pumping from the storage ponds to Yellowstone in 2020, before irrigation season started; right?
BSWSD: [Excel] will add this up for us if we highlight it. So can you tell us what the total amount in millions of gallons that were pumped from the storage ponds to the Yellowstone Club in 2020, before irrigation season started?
MR. EDWARDS: It’s 18.097. Right below the tab you can see the total that’s shown there.
BSWSD: Okay. And if we go back to the top of the spreadsheet, you’ll see there’s another column for Spanish Peaks Pump Station 1. That shows the district pumping to Spanish Peaks from its storage ponds after irrigation season ended in 2020; right?
BSWSD: All right. So let’s highlight that and see what we come up with.
MR. EDWARDS: That total is 12.067.
17 (Id. at 69–70) (emphasis added). Cottonwood cannot claim the 12.067 million gallons represents a fraudulent number when witnesses discussed that number at
trial. (Compare Doc. 239 at 4–6; Doc. 160 at 69–70.) Cottonwood declined to question Edwards about this number on cross-examination. (See Doc. 160 at 73– 81.) In fact, Cottonwood asked no questions of Edwards on cross-examination
regarding BSWSD’s export of water from the holding pond for irrigation of the golf courses at Spanish Peaks and the Yellowstone Club. (Id.) The trial testimony disproves Cottonwood’s alleged fraud. The trial testimony can be summarized as follows. BSWSD updated the Excel spreadsheet
at issue over time as it exported water for irrigation to the Yellowstone Club and Spanish Peaks. (Doc. 159 at 12.) Some of these exports occurred during the non- irrigation season. (See Cottonwood’s Exhibit 112; Cottonwood’s Exhibit 113.)
Cottonwood identified three spreadsheet versions as trial: Exhibit 112, Exhibit 113, and Exhibit 119. The Court admitted the spreadsheets in Exhibit 112 and Exhibit 113 at trial. (Doc. 145.) BSWSD’s counsel explained each version of the spreadsheets at trial: “119 is the February [2021] version, 112 is the July [2021]
version, and 113 is the October [2021] version of the same spreadsheet.” (Doc. 159 at 83.) No one falsified the data contained in the spreadsheets. As was explained at
trial and in BSWSD’s briefing, BSWSD periodically updates the water export data 18 in the spreadsheet. (Doc. 159 at 12; Doc. 242-1 at 5.) Cottonwood’s alleged real spreadsheet, Exhibit 119, simply had not been updated by BSWSD with all the
water export data from 2020. Cottonwood possessed the updated spreadsheets (Exhibit 112) and had it admitted at trial. (See Doc. 240 at 44–47; Cottonwood’s Trial Exhibit 112; Cottonwood’s Trial Exhibit 113.) Cottonwood now derides as
fake its own Exhibit 112. The Court finally addresses Cottonwood’s claim of hidden tabs contained in its Exhibit 112 and Exhibit 113. The Court has examined Exhibit 112 and Exhibit 113. Each spreadsheet contains over 50 tabs. (See Cottonwood’s Exhibit 112;
Cottonwood’s Exhibit 113.) Cottonwood presented a screenshot of its Exhibit 119 in its Reply Brief in support of this motion. (Doc. 239 at 4.) The screenshot of Exhibit 119 contains a tab labeled “YC SP Flows 2019-20” (Id.) Exhibit 112 and Exhibit
113 contain tabs labeled “YC SP Flows 2019-20.” (See Cottonwood’s Trial Exhibit 112; Cottonwood’s Trial Exhibit 113.) Not all the tabs are viewable upon opening, including the tab labeled “YC SP Flows 2019-20.”
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□□□ aT aS CET Date. Year Manth Da; Day2 | North Loop NorthLoop South Loop North Leop North Loop Fresh Water Total (Gall (MG: Pump Sta. 1 Pump Sta. 2 North Le Nerth Loop SouthLoop North | ce 05-Oct-2017 wea manila ima Thu 0.222 0.086 0.31 0.000 222,000 86,000 08-Oct-2017 ARE aBabeTALEAE Fa 0,190 0.088 0.28 9,000 190,000 88,000 ab} OF-Oct2017 wasHES aT RH = Sat 0.148 0.080 0.23 0.000 143,000 90,000 08-Oct-2017 a A AEE Sun 0.143 0.091 0.23 9,000 143,000 91,000 09-Oct-2017 asHeS at HEH = Mon 0.084 0.008 0.18 0.000 84,000 96,000 11-Oct-2017 WeSHES see HH | Wed 0.006 0.10 0.000 96,000 eer as ae oe om oe | om am 13-Oct-2017 WRSHES RHE EEE Fa 0.082 0.08 0,000 82,000 arity 14-Oct-2017 eaies mudi temaie Sat 0.000 15-Oct-2017 WeSRES HHH BEM = Sun 0,000 REDE} Aric} Pte ty ari) mes Arar) PUTT ran) □□□ arard P-TeYare mre Mateo aFiC) Ree ara eld cola Mate □□□ a=] rr ashy en aed ad trettemel ata ee Tat crc} feTtel} (eld arr ny ares} ares} □ Master Irrigation ee Ce ake Ed □□□ PL ol a ee I Saeco UCL) EE} Ea J Sa (Cottonwood’s Trial Exhibit 112) (emphasis added). (a oa mr OUR re te)
SCCM Pea ET ur ey □□ □□ Mca Eres ee Re © Activate Microsoft 365 to Create and Edit Activate Microsoft 365 to Create and Edit Activate seri Sf Ey Meadow Village Golf Course Yellowstone Clu Meadow Village Golf Cours: Purp 1 Pump 2 Pump 3 spa Day Pump 1 Purnp 2 Pump 3 ap Date Year Month Day Day? Nerth Loop North Loop Seuth Loop North Loop Nerth Loop Fresh Water _ Total (Galj Pump Sta.1___Pump Sta. 2 North Li North South Lo North | at 12-Oct-2017 BanaeH BEEAES | Thy 0.068 0.10 0.000 99,000 ts) 13-Oct-2017 ibid eatin ater Fa 0.082 0.08 0.000 82,000 cri) 14-Oct-2017 Hee aaneeH HEEHES = Sat 0.000 16-Oet-2017 sida ania | Sun 0.000 □□ cra) irae) Tt lea crit) per brite} Aoki) arity oe melee irea rity Dace stoi) cre) eee □□ mele) Pra) BPMs wat □□□ □□ a TTC fore
iad 2020 Irrigation Master Irrigation ee Ute aah ed ee a ot aed cr] ae Sr Cottonwood’s Trial Exhibit 113 hasis added). The YC SP Fl 2019-20 ottonwood's [rial Exhib1 emphasis added). [he Ows -
tab in both exhibits contains export data from after November 4, 2020.
iA} om Rao eet rn Ou eae eae) □□ Ue ec Oo □□ eo te an a as ae ok aid fort □ i eee ee oe ee: | a eve Or isi a a is om gt ree rs Pe ed een core ue [re] FE [eee ee eC I coal = ie le Bite oN ne ee: Bec Cd ames © Activate Microsoft 365 to Create and Edit Activate Microsoft 365 to Create and Edit Activate a □□□ TPL) 13.854 18-Apr2018 0383 11.040 SY sus 1-Mar-2021 0.248 og17 14.285 19-Apr-2018 O.3d2 11.382 05-Nov-2020 0.368 (02-Mar-2021 0.233 0.218 14.78 20-Apr2018 0.355 1937 06-Nov-2020 0.368 o3-Mar-2021 0.245 0.216 14.967 21-Apragie 0.361 12.088 7-Nov-2020 0.304 04-Mar-2021 0.248 0218 2 Maintenanca 22-Apr-2018 0.341 12.425 03-Nov-2020 0.055, (05-Mar-2021 0.249 0.218 2hApr2gie 0.360 12.789 09-Nov-2020 06-Mar-2021 0.248 0.220 24-Apr2018 0346 13.135, 10-Nov-2020 O7-Mar-2021 0.262 0218 ry 26-Apr2018 0344 13.478 11-Nov-2020 08-Mar-2021 0.248 0217 26-Apr-2018 0.361 13.840 12-Nov-2020 0.028 09-Mar-2021 0.249 0.218 27-Apr2018 14.181 13-Nov-2020 0018 10-Mar-2021 0.235 0.205 28-Apragia 0.381 14.532 14Now-2020 11-Mar-2021 0.264 0216 15.240 28-Apr-2018 0.353 14.885, 18-Nov-2020 0.012 12-Mar-2021 0.248 0.218 15.668 30-Apr 2018 15.068 16-Nov-2020 0.006 19-Mar-2021 0.250 0.216 16.084 01-May-2018 0213 15.281 17-Now-2020 0.132 14Mar2021 0.238 0208 16.526 02-May-2019 0.351 18.632 18-Nov-2020 0.310 15-Mar-2021 0.250 0.218 16.955 03-May-2019 0.393 15.965 19-Mov-2020 0.296 16-Mar-2021 0.265 0.216 17.aat 04-May-2018 0.354 16.318 20-Nov-2020 17-Mar-2021 0241 0216 17.814 (05-May-2019 0,332 16.651 21-Nov-2020 18-Mar-2021 0.251 0.202 18.240 06-May-2019 0.343 16.994 22-Nov-2020 19-Mar-2021 0.250 0.216 18.667 O7-May-2019 0.327 17.321 23-Nov-2020 o.124 20-Mar-2021 0.261 0219 13,100 Og-May-2018 0.330 17.081 24-Nov-2020 0.308 21-Mar-2021 0.264 0216 19.527 (09-May-2019 0.338 17.989 25-Mov-2020 0.305, 22-Mar-2021 O.247 O21F 19.954 10-May-2019 0.324 18.313 26-Nov-2020 0.307 ‘234vlar-2021 o.24z 0.200 20.288 11-May-2019 0346 18.653 27-Nov-2020 0.308 24-Mar-2021 0241 0.200 20.815 12-May-2019 0.323 18.982 23-Mov-2020 0,305, 25-Mar-2021 0.316 0.276 21.070 13-May-2019 0.340 19.322 29-Nov-2020 0.304 (26-Mar-2021 0.331 0.325 Maintenance 14-May-2019 0.328 19.650 30-Nov-2020 o.194 27-Mar-2021 oa6e 0.348 21.340 15-May-2019 0.394 19.584 01-Dec-2020 24.Mar-7021 0.364 0.347 21.579 16-May-2019 0.333 20.317 02-Dec-2020 (29-Mar-2021 0.415 0.395 Ti-May-2019 0.390 20.647 03-Dec-2020 ‘s04Ma‘-2021 0.445 o.aza 18-May 2019 0.397 208a2 0aDe<2020 31-Mar-2021 0847 0.836 19-May-2019 0.327 21.311 05-Dec-2020 01-Apr-2021 0.445 0.436 20-May-2019 0.340 21.651 ‘06-Dec-2020 Oz-Apr-2021 0.481 21-May-2018 21.875 07-D8¢7020 0.126 03-Apr-2021 o8e1 22-May-2019 0385 22.320 08-Dec-2020 0319 04-Apr-2021 0.481 A) 23-May-2019 0.324 22.644 09-Dec-2020 0.312 OS-Apr-2021 442 24-May-2019 0.345 “22.889 10-Dec-2020 0.308 O6-Mpr-2021 0.4a7 25-May-2019 0.301 73.250 11.0ee 2020 0.303 07-Apr-2021 0.480 26-May-2019 0.136 23.426 12-Dec-2020 0.302 08-Apr-2021 0.439 27-May-2019 0.138 23.664 13-Dec-2020 0.300 08-Apr-2021 O.4g9 28 May 2019 0278 23.842 14Dec 2020 0.297 10-Apr-2021 0.439 29-May-2019 0.325 24.167 15.00¢2020 0.295 11-Apr-2021 0.437 20-May-2019 0.346 24.513 16-Dec-2020 0.294 12-Apr-2021 0.436 ‘31-May-2019 0.325 24.838 17-Dec-2020 0.301 13-Apr-2021 0.434 01-Jun-2019 0.341 25.178 18-Dec-2020 0.299 02-Jun-2019 0.325 25.504 19-Dec-2020 0.300 03-Jun-2019 0.182 35.686 Pumps OM] 20-Oee-2020 0.298 21-0 2020 0.297 08-Now-2019 0.182 0.162 22-Dec-2020 0.138 08-Now-2019 0.346 0.508 oi YG SP Flows 2019-20 ee Gece Me Saracen Ec Fee eats] 1: orate TT ee cE Pe (Cottonwood’s Trial Exhibit 112) (emphasis added) . fal i Oman REM Cg re) Se eau ea) □□ ees □□ eer [Et eee le: ie eae ee eo a erat a mae =| HE ee cy PCs Penn) Rec Err) □□□ eee td TEE is ear [SOP meee il i □□ ee Ty e Activate Microsoft 365 to Create and Edit Activate Microsoft 365 to Create and Edit Activate = □□ Flore) □ FS SS cllewston Club Pump: Statien Plows | _____ ee —= _— eee — = eee —= — 03-Mar-2017 O444 13.854 18-Apr-2019 0.353 11,040 3.474 01-Mar-2021 0.246 0.217 04-Mar-2017 0.441 14.295 19-Apr-2019 0.342 11.38z 05-Nov-2020 0.368 Dz-Mar-2021 0.233 0.218 05-Mar-2017 0.403 14.738 20-Apr-2019 0.355 937 06-Now-2020 0.365 03-Mor2021 0.245 0216 06-Mar-2017 0.219 14.997 27-Apr-2019 0.391 12.088 07-Nov-2020 0.364 04-Mar-2021 0.248 0.218 07-Mar-2017 Pump Station 2 Msiniensnce 22-Apr-2019 0381 12.429 OB-Nov-2020 0.055 05-Mar-2021 0.249 218 (88-Mar-2017 23-Apr-2018 0.360 12.788 09-Nov-2020 6-Mar-2021 0.248 0.220 05-Mar-2017 24-Apr-2018 0.346 13.135 10-Nov-2020 07-Mer-2021 0.262 0.218 Bem 10-Mar-2017 25-Apr-2013 0.346 13.479 11-Nov-2020 08-Mar-2021 0.249 0.217 Sim 11-Mar-2017 26-Apr-2019 0.361 13.840 12-Nov-2020 0.028 09-Mar-2021 0.249 0.218 12-Mar-2017 27-Apr-2018 0381 14.181 13-Nov-2020 0.018 10-Mar-2021 0.235 0.205 13-Mar-2017 28-Apr-2013 0.351 14,532 14-Nov-2020 11-Mar-2021 0.264 0.216 14-Mar-2017 0.283 15.240 ‘20-Apr-2019 0.353 14.885 15-Nov-2020 0.012 42-Mar-2021 o.2ag 0.216 15-Mar-2017 0.426 15.606 30-Apr2gia 0.183 15.088 16-Nov-2020 0.005 13-Mar-2021 0.260 0216 16-Mar-2017 0.428 16.094 01-May-2019 D.213 15.281 17-Nov-2020 0.132 ‘14-Mar-2021 0.238 0.208 17-Mer-2017 0.832 16.526 02-May-2018 0.351 15.632 18-Nov-2020 0.310 15-Mar-2021 0.260 218 18-Mar-2017 0.425 16.955. 03-May-2019 0.333 15.965 19-Nov-2020 0.296 16-Mar-2021 0.265 0.216 19-Mar-2017 0.426 17.381 04-May-2019 0.354 16.319 20-Nov-2020 17-Mar-2021 241 0.216 Fey 20-Mar-2017 0.433 17814 05-May-2019 0.332 16.651 21-Now-2020 1a.Mor2021 0.251 0.202 21-Mar-2017 0.426 18.240 06-May-2019 0.343 16.994 22-Nov-2020 19-Mar-2021 0.250 0.216 22-Mar-2017 0.427 18.667 07-May-2018 0327 17.321 25-Nov-2020 0.124 20-Mar-2021 0.261 0219 23-Mar-2017 0.433 19.100 08-May-2019 0.330 17.681 (24-Nov-2020 0.305, 21-Mar-2021 0.264 0.216 24-Mar-2017 427 19.527 05-4May-2019 0.338 17.988 26-Nov-2020 0.305 22-Mar-2021 0.247 0.217 25-Mar2017 0.427 19,954 10-May-2019 0.324 18.313 26-Nov-2020 0.307 23-Mar-2021 0.2482 0.200 26-Mar-2017 0.434 20.383 11-May-2019 0.346 18.659 27-Nov-2020 0.306 24-Mar-2021 0.241 0.200 27-Mer-2017 0.427 20.815 12-May-2018 0.323 18.982 28-Nov-2020 0.205 25-Mar-2021 0.316 0276 26-Mar-2017 0.255 21.070 13-May-2019 0.340 19,322 29-Nov-2020 0.304 26-Mar-2021 0.331 0.325 29-Mar-2017 Pumps Off: Easmant Maintenance 14-May-2019 0.328 19.650 30-Nov-2020 0.194 27-Mar-2021 0.364 0.348 Fey 12.Apr2017 0.270 21.340 15-May-2018 0.334 19.984 ‘01-Dec:2020 28-Mar-2021 0.364 0.347 20-Apr-2017 0.238 21.579 16-May-2019 0.333 20.317 (02-Dec-2020 29-Mar-2021 0.415 0.395 17-May-2018 0.330 20.647 03-Dec2020 30-Mar-2021 0.486 0.429 18-May-2019 0.337 20.984 04-Dec-2020 31-Mar-2021 0.447 0.436 19-May-2019 0.327 21.311 ‘05-Dec-2020 O1Apr-2021 0.445 0.496 20-May-2019 0340 21.651 06-Dec.2020 02-Apr-2021 0.881 21-May-2019 0.324 21.975 07-Dec-2020 0.125, 03-Apr-2021 0.441 22-May-2018 0.345 223920 ‘08-Dec-2020 aig 04-Apr-2021 0.441 ral 23-May-2019 0.324 22.644 (08-Dec-2020 0.312 O6-Apr-2021 0.442 2d-4lay-2019 0.345 “22988 10-Dec-2020 0.308 06-Apr-2021 0.482 25-May-2019 0.301 23.290 11-Dec-2020 0.303 07-Apr-2021 0.440 26-May-2019 0.136 23.426 12-Dec-2020 0.302 08-Apr-2021 0.439 27-May-2018 0.138 23.564 13-Dec2020 0.300 09-Apr-2021 0.439 26-May-2019 0.278 23.842 14-Dec-2020 0.297 10-Apr-2021 0.439 25-May-2019 0.325 24.167 15-Dec-2020 0.255 11-Apr-2021 0.437 30-May-2019 0.346 24.513 16-Dec-2020 0.294 12-Apr-2021 0.436 31-May-2019 0325 24.838 17-Dec-2020 0.301 13-Apr-2021 0.436 ‘01-Jun-2019 0341 25.179 18-Dec-2020 0.298 02-Jun-2019 0.325 25.904 19-Dec-2020 0.300 03.Jun-2019 0182 25.686 Pumps OM | 20-Dec2020 0.289 21-Dec-2020 0.297 ity 05-Nov-2019 0.162 0.162 22-Dec-2020 0.139 06-Nov-2019 0.346 0.508 Sa ees rE Eee tee ot: er ee □ =I J Ces Cottonwood’s Trial Exhibit 113 hasis added ottonwood Ss Iflal EXn101 empnasis added).
Cottonwood’s allegations of fraud fall short. Cottonwood bases BSWSD’s alleged fraud on a spreadsheet (Exhibit 119) that was not admitted into evidence at
trial. (See Doc. 145; see also Doc. 159 at 84; Doc. 239 at 3–7; Doc. 240 at 44–47.) The jury never saw Exhibit 119. The Court finds unpersuasive Cottonwood’s allegations that BSWSD intentionally hid the YC SP Flows 2019-20 tab on Exhibit
112 and Exhibit 113. Cottonwood’s expert conceded at trial that Cottonwood knew about the alleged fraudulent export data in Exhibit 112: “we did discover that there was another tab that covered exports during the non-irrigation season.” (See Doc. 159 at 123, 124–25, 127, 129, 130.)
The record also indicates that BSWSD disclosed Exhibit 112 to Cottonwood 10 months before trial on July 26, 2021. (See Doc. 242-1 at 7.) Cottonwood’s counsel nevertheless insisted at oral argument on this motion that “[t]he first time
we saw [Exhibit 112] was during trial.” (Doc. 265 at 3.) Cottonwood’s counsel reiterated this accusation multiple times, “[w]e did not know that there was a spreadsheet saying that the Big Sky Water and Sewer District exported 12 million gallons to Spanish Peaks until the day of trial.” (Id.) Cottonwood’s counsel again
stated at oral argument on this motion that “we didn’t know this document even existed until they told us how to find the hidden document in their sur-reply brief. Two months ago was [the] first time we were ever able to access this document.”
(Id. at 4.) Cottonwood’s counsel eventually admitted that it had received the water 23 export data in Exhibit 112 10 months before trial in July 2021. (Id. at 5.) This concession contradicted Cottonwood’s earlier claim that it had not received the
updated data until the day before trial in April 2022. (Id.) Cottonwood also accuses BSWSD of not having provided the spreadsheet data to the Court after trial. (Doc. 239 at 7.) The trial testimony contradicts
Cottonwood. (See Doc. 159.) Cottonwood admitted the spreadsheet in Exhibit 112 at trial. (See id.) The docket entry that Cottonwood cites to support its accusation also states that “[t]he District separately . . . mail[ed] the clerk a USB drive containing native files for Exhibits 112, 113, 201, and 227, as required by L.R.
5.1(b)(4).” (Doc. 152 at 2; see also Doc. 154 at 2.) The Court rejects Cottonwood’s version of this alleged dispute. No “intentional, material misrepresentation directly aimed at the court” exists. Trendsettah USA, Inc., 31 F.4th at 1134.
Cottonwood accuses BSWSD of “undermin[ing] the judicial process.” (Doc. 239 at 10.) The Court disagrees. Our court system must remain grounded in a search for the truth and to accuse opposing counsel of being untruthful represents a serious accusation. Such accusations should be made only when there exists evidence of
“newly discovered” misconduct that is both “egregious” and supported by facts. Sierra Pac. Indus., Inc., 862 F.3d at 1168; Trendsettah USA, Inc., 31 F.4th at 1132– 34. The record before the Court remains devoid of anything resembling a credible
claim of misconduct by BSWSD. Cottonwood fails to support its baseless fraud 24 allegations with any evidence that approaches the clear and convincing standard that the Court must apply. Stonehill, 660 F.3d at 44.
II. Sanctions
A. Attorney Fees
BSWSD requests that the Court order Cottonwood to pay attorneys’ fees and place a filing restriction on Cottonwood related to this litigation. (Doc. 238 at 18– 24.) Courts possess inherent authority to impose sanctions. Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001). A court also may impose attorney fees under 28 U.S.C. § 1927. A court must find “bad faith” or “reckless conduct” to impose sanctions. Pac. Harbor Capital, Inc. v. Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000). Instances “when the losing party acted in bad faith, vexatiously, wantonly, or for oppressive reasons” support the imposition of
sanctions. Fink, 239 F.3d at 991 (9th Cir. 2001) (internal quotations and citation omitted). Cottonwood persists in pushing a baseless fraud theory that has been debunked multiple times three years after trial. Cottonwood simply changes its
theory when the facts fail to support the previous theory. (Compare Doc. 236 (falsifying water export data) to Doc. 239 (failing to disclose tabs on Excel spreadsheets).) Cottonwood also seeks to push this baseless theory through a civil
RICO action related to this litigation. (See Doc. 238-6.) It appears that the same 25 theory of fraud supporting this motion underpins Cottonwood’s civil RICO action. (Id.) Cottonwood’s reckless misstatements and disregard of facts, combined with
the relentless pursuit of an alleged theory of fraud that has been rebutted multiple times, warrant sanctions. The Court will award BSWSD $7,500.00 in attorneys’ fees.
B. Filing Restriction
Courts “have inherent power to control their dockets.” Atchison Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071, 1074 (9th Cir. 1998) (internal quotations omitted). Courts may restrict “litigants with abusive and lengthy histories” from filing under 28 U.S.C. § 1651(a). De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990). The Court finds such a measure appropriate in this case.
Cottonwood remains unwilling to accept the judgment. Cottonwood freely tried this case to a jury. The jury returned a defense verdict. (Doc. 157.) Cottonwood pushed its false evidence theory in moving for a new trial. (Doc. 172.) The Court denied that motion. (Doc. 198.) Cottonwood appealed to the Ninth
Circuit on grounds unrelated to its false evidence theory. (Doc. 210.) Cottonwood’s appeal was denied. See Cottonwood Evn’t L. Ctr. v. Edwards, 86 F.4th 1255, 1264 (9th Cir. 2023). Cottonwood pursued collateral attacks on the
Court’s judgment in Montana state district court and with DEQ and the EPA based 26 on the same false evidence theory. (See Doc. 238-1; Doc. 238-2; Doc. 238-3; Doc. 238-4; Doc. 238-5; Doc. 238-10; Doc. 238-11.) Cottonwood’s attacks failed. (See
Doc. 238-1; Doc. 238-2; Doc. 238-3; Doc. 238-4; Doc. 238-5; Doc. 238-10; Doc. 238-11.) Cottonwood now brings this motion three years after the Court entered
judgment. Even though “certainty generally is illusion, and repose is not the destiny of man,” finality in the law proves essential. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 465 (1897). Certainty is not an illusion here and repose is this issue’s destiny. Judgment is entered and final. Cottonwood must
seek leave of the Court to file any further motions in this case against BSWSD and its employees. III. Motion for Mediation
Cottonwood filed a motion for mediation with Boyne Resorts (“Boyne”) on June 20, 2025. (Doc. 262.) Boyne does not wish to participate in mediation currently. (See Doc. 263.) The Court will deny Cottonwood’s motion. CONCLUSION The Court finds that BSWSD did not commit fraud on the Court.
Cottonwood’s fraud allegations repeatedly have been disproven. The Court orders Cottonwood to pay $7,500.00 in attorneys’ fees to BSWSD. Cottonwood must
27 seek leave from the Court before filing any additional motions in this case against BSWSD and its employees.
The Court finally would remind Cottonwood and its supporters that litigation takes place in an open and transparent court setting. After the hearing on this motion on Monday, June 9, 2025, an anonymous caller left a voicemail with
the Court’s Chambers encouraging the Court to “do a little homework on Excel.” The Court welcomes and encourages citizens to observe and engage with the Court’s docket. The Court reiterates the open and transparent setting in which litigation occurs. Anonymous voicemails do not constitute open and transparent
communication. The Court also has done its homework on Excel in this case. Cottonwood knew of the tabs in Exhibit 112 and Exhibit 113 that contained the irrigation export data to Spanish Peaks and Yellowstone Club more than three
years ago when it tried the case to a jury in 2022. (See Doc. 159 at 130.) Exhibit 119 contained the same tab. (Doc. 239 at 4.) ORDER Accordingly, it is ORDERED that Cottonwood’s Motion to Vacate (Doc. 235) is DENIED.
1. Cottonwood is ordered to pay $7,500.00 in attorneys’ fees to BSWSD. 2. Cottonwood must seek leave of the Court before filing any additional motions in this case against BSWSD and its employees. 28 3. Cottonwood’s Motion to Strike (Doc. 243) is DENIED. 4. Cottonwood’s Motion for Hearing (Doc. 245) is DENIED as moot. 5. BSWSD’s Motion for Leave to File a Sur-Reply (Doc. 241) is DENIED
as moot. 6. Cottonwood’s Motion for Mediation (Doc. 262) is DENIED. DATED this 10th day of July, 2025. wg A L VA . Wii (“btu Brian Morris, Chief District Judge United States District Court