Mooring Buoy. Pursuant to the Commission's delegation of authority and the State CEQA Guidelines (Title 14, California Code of Regulations, section 15061), the staff has determined that this activity is exempt from the requirements of the CEQA as a categorically exempt project. The project is exempt under Class 3, New Construction of Small Structures; Title 2, California Code of Regulations, section 2905 (c)(3). Authority: Public Resources Code section 21084 and Title 14, California Code of Regulations, section 15300 and Title 2, California Code of Regulations, section 2905.
Mooring Buoy. Nor has defendant proven by preponderant evidence that the Mooring Buoy constitutes a Type I differing site condition. Although the court is not persuaded by defendant’s suggestion that the Contract’s failure to “say anything one way or the other about mooring buoys or the like,” is dispositive of this claim, see Def.’s Br. at 83, the court agrees with defendant that plaintiff cannot establish that the mooring buoy was the sole proximate cause of plaintiff’s injury. The mooring buoy was encountered on April 16, 2001, and appears in a photograph of trash, debris, and other materials taken that day. See PX 18.211. Plaintiff made no attempt at trial or in its certified claim to segregate the injuries allegedly incurred as a result of its encounter with the mooring buoy from those attributable to the other materials dredged that day. In fact, the evidence presented at trial undercuts plaintiff’s argument that the injuries sustained by the Millennium were caused by its encounter with the mooring buoy. When questioned by plaintiff’s counsel concerning the effect on the Millennium of plaintiff’s encounter with the mooring buoy, Mr. Goodloe, who “manage[d] the Upper Bayou Project [and] [t]ook over the dredging aspects of the job . . . in October 2000,” Tr. at 2751:20–2752:4 (colloquy between Goodloe and plaintiff’s counsel), testified: “[I]t didn’t do it any good. When you continually get these things like chain, mooring buoys, it shortens the life of your seals and bearings and your drive.” Id. at 2773:12–19 (colloquy between Goodloe and plaintiff’s counsel) (emphasis added). As defendant notes, this “response implies that striking the mooring buoy was not the sole cause of the damage to the cutterhead gear box—that there were other encounters with obstructions that are not part of this claim and for which Renda has not established that the Government is responsible.” Def.’s Br. at 83. Plaintiff’s own records also undercut its argument that the Millennium’s encounter with the mooring buoy was the sole cause of the damages claimed in plaintiff’s Obstructions No. 2 claim. Plaintiff reports in its April 16, 2001 IRD that “the cutter gearbox was damaged when a large mooring buoy was encountered.” JX 9.586 (4/16/01 IRD) at 2. However, plaintiff also attributes this same injury to an encounter with a different “obstruction”—an obstruction that was neither identified in plaintiff’s certified claim nor discussed during trial—which occurred several days before plaintiff’s...
