Jones Creek Investors, LLC et al v. Columbia County, Georgia et al
Filing
524
ORDER denying 498 Motion for Reconsideration re: 493 Order on Motion for Summary Judgment, and denying 499 Motion to Stay the Proceedings. Signed by Chief Judge Lisa G. Wood on 2/12/2016. (csr)
3ht tbe initebstates; 1Dttrict court
for the Ooutbern flitritt of Otorgia
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JONES CREEK INVESTORS, LLC and
SAVANNAH RIVERKEEPER, INC.,
Plaintiffs,
CV 111-174
V.
COLUMBIA COUNTY, GEORGIA, and
CSX TRANSPORTATION, INC.
Defendants.
ORDER
In its March 31, 2015, Order, this Court granted in part
Defendant Columbia County's motion for summary judgment, and
granted in its entirety Defendant CSX Transportation's motion
for summary judgment. See Dkt. No. 493. Plaintiff Jones Creek
Investors, LLC ("JCI") has filed a Motion for Reconsideration
(Dkt. No. 498) and, alternatively, a Motion to Stay the
Proceedings (Dkt. No. 499) . For the reasons discussed below,
both Motions are DENIED.
BACKGROUND
Plaintiffs JCI and Savannah Riverkeeper, Inc. sued
Defendants Columbia County, Ga ("Columbia County") and CSX
Transportation, Inc. ("CSXT"), alleging that the Defendants'
upstream construction and development projects caused sediment
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to accumulate in the Savannah River and JCI's irrigation pond
for its golf course. The facts, claims, and procedural history
are chronicled in the Court's Marsh 31, 2015, Summary Judgment
Order. See Dkt. No. 493 ("Order")
The Order granted summary judgment to both Defendants on
Plaintiffs' Clean Water Act ("CWA") claims, 33 U.S.C. § 1251 et
seq., because Plaintiffs failed to produce evidence from which a
jury could find that the waters in question were "waters of the
United States" within the scope of the CWA. Order at pp. 66-67.
In addition, the Order granted summary judgment on Plaintiff
JCI's state-law claims against Defendant CSXT because the
Interstate Commerce Commission Termination Act of 1995
("ICCTA"), 49 U.S.C. § 10101 et seq., preempts those claims.
Order at pp. 32-33. The Order also granted summary judgment on
Plaintiff JCI's federal takings claim against CSXT because
Plaintiff failed to show that CSXT was a "state actor" for
purposes of that claim. Order at p. 37.
In response to the Order, Plaintiff JCI has filed a Motion
for Reconsideration (Dkt. No. 498) and, alternatively, a Motion
to Stay the Proceedings (Dkt. No. 499) . The Motion for
Reconsideration asks the Court to revise its summary judgment
Order in light of the Environmental Protection Agencies' ("EPA")
new rule which clarifies and broadens the definition of "waters
' Plaintiff Savannah Riverkeeper does not join JCI in its motions, and JCI
alone will be referred to as "Plaintiff" for the remainder of this Order.
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2
of the United States" for purposes of the CWA. Dkt. No. 498,
p. 2. The Motion for Reconsideration also asks the Court to
consider a theory as to why CSXT is a state actor that Plaintiff
failed to argue in its summary judgment briefing. See id. at p.
IN
The EPA's "New Rule" that Plaintiff wants the Court to
apply in this case was published in the Federal Register on June
29, 2015. Clean Water Rule: Definition of "Waters of the United
States", 80 Fed. Reg. 37,054-01 (Jun. 29, 2015) (relevant
portions to be codified at 40 C.F.R. pts. 110 & 232) . The rule
became effective on August 28, 2015. Id. When Plaintiff filed
its Motion to Stay on June 15, 2015, Plaintiff requested that
the Court stay the proceedings until after the New Rule becomes
effective, "should the Court deem that the appropriate course."
Dkt No. 499, p. 2.
Plaintiff briefed its arguments in its respective motions,
dkt. nos. 498, 499, and responded to Defendants' arguments.
Dkt. Nos. 506, 507, 508, 514, 515. Plaintiff also notified the
Court when the NewRule was published in the Federal Register.
Dkt. No. 502. For their part, defendants Columbia County and
CSXT responded to both of Plaintiff's motions. Dkt. Nos. 500,
501, 509, 511. On November 9, 2015, the Court held a hearing in
Augusta, Georgia to address the pending Motions. Dkt. No. 521.
Both Motions are now ripe for review.
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DISCUSSION
I.
Plaintiff's Motion for Reconsideration (Dkt. No. 498)
a. Standard for Reconsideration
The Court's prior Order did not dispose of all of
Plaintiff's claims against Columbia County. Under Federal Rule
of Civil Procedure 54(b),
[A]y order or other decision, however designated,
that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties
does not end the action as to any of the claims or
parties and may be revised at any time before the
entry of a judgment adjudicating all the claims and
all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). 2 This rule gives district courts
discretion to reconsider interlocutory orders. See Herman v.
Hartford Life & Acc. Ins. Co.,, 508 F. App'x 923, 927 n.1 (11th
Cir. 2013) (citing McCoy v. Macon Water Auth., 966 F. Supp.
1209, 1222 (M.D. Ga. 1997))
By its terms, Rule 54(b) does not impose any guidance or
limits on the Court's power to reconsider an interlocutory
2
In moving for reconsideration, Plaintiff relies primarily on Rule 54(b),
which allows district courts to revise interlocutory judgments before a final
judgment on all claims is entered in a case. Dkt. No. 498, p. 1. Plaintiff
also mentions Rule 59(e) as a possible source of authority for the court to
reconsider its Order. Id. at p. 2, n.l. Under Rule 59(e), "A motion to alter
or amend a judgment must be filed no later than 28 days after the entry of
the judgment." Fed. R. Civ. P. 59(e). Plaintiff's motion for reconsideration
was not filed within 28 days of the Court's Order, and thus would be untimely
if construed as a Rule 59(e) motion. Nevertheless, because the Court's Order
adjudicated "fewer than all the claims" before it, reconsideration is
appropriate under Rule 54(b). Fed. R. Civ. P. 54(b); see also Lamar Advert.
of Mobile, Inc. v. City of Lakeland, Fla., No. 97-721-CIV, 189 F.R.D. 480,
492 (M.D. Fla. 1999) (noting that a motion to reconsider an interlocutory
order is appropriate under Rule 54(b) even if a similar motion would be
untimely under Rule 59(e)).
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order. Other courts in the Eleventh Circuit have identified
three grounds for reconsideration pursuant to Rule 59(e): "(1)
the availability of new evidence; (2) an intervening change in
controlling law; and (3) the need to correct clear error or
prevent manifest injustice." Smith v. Augusta-Richmond Cnty.,
No. CV 110-126, 2012 WL 1355575, at *2 (S.D. Ga. Apr. 18, 2012).
The Eleventh Circuit Court of Appeals has also recognized that
"a change in controlling law is one of the core reasons for
filing and granting a motion for reconsideration" under Rule
54(b). See Douglas Asphalt Co. v. QORE, Inc., 657 F.3d 1146,
1151-52 (11th Cir. 2011) (citations omitted).
"[R]econsideration of a previous order is 'an extraordinary
remedy, to be employed sparingly."' Augusta-Richmond Cnty., 2012
WL 1355575, at *1 (quoting Williams v. Cruise Ships Catering &
Serv. Int'l, N.V., 320 F. Supp. 2d 1347, 1358 (S.D. Fla. 2004)).
"A movant must 'set forth facts or law of a strongly convincing
nature to induce the court to reverse its prior decision."' Id.
(quoting Cover v. Wal-Mart Stores, Inc., 148 F.R.D 294, 294
(M.D. Fla. 1993)). Additionally,
"[m]otions for reconsideration
should not be used to raise legal arguments which could and
should have been made before the judgment was issued." Id. at *2
(quoting Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th
Cir. 1998) ) .
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b. The EPA's New Rule Is Not Retroactively Applicable in
This Case
The Court's Order dismissed Counts 2 and 3 of Plaintiff's
Complaint, which alleged violations of the CWA against
Defendants, because Plaintiff failed to produce evidence from
which a jury could find that Willow Lake and its tributaries
were "waters of the United States" subject to the CWA. Order at
pp. 66-67. In so holding, the Court relied on the thenapplicable "significant nexus" test first announced by Justice
Kennedy in his concurrence in Rapanos v. United States, 547 U.S.
715, 779 (2006) (Kennedy, J., concurring), and later adopted by
the Eleventh Circuit Court of Appeals in United States v.
Robison, 505 F.3d 1208, 1221-22 (11th Cir. 2007) . See Order at
pp. 57-58.
In seeking reconsideration, Plaintiff argues that the
"significant nexus" test is no longer the controlling law in
this case, and has been superseded by the EPA's "New Rule" on
determining jurisdictional waters under the CWA. The New Rule
was published in the Federal Register on June 29, 2015, and
became "effective" on August 28, 2015. According to Plaintiff,
pursuant to the New Rule, "Jones Creek, Willow Lake, and their
tributaries are all jurisdictional waters pursuant to the
category for tributaries in the definition." Dkt. No. 498, p. 2.
The pertinent part of the New Rule states:
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M
.
(1) For purposes of the Clean Water Act, 33 U.S.C.
1251 et seq. and its implementing regulations, subject
to the exclusions in paragraph (o) (2) of this section,
the term "waters of the United States" means:
(i)
All waters which are currently used, were
used in the past, or may be susceptible to
use in interstate or foreign commerce,
including all waters which are subject to
the ebb and flow of the tide;
(ii)
All interstate waters, including
interstate wetlands;
(iii)
The territorial seas;
(iv)
All impoundments of waters otherwise
identified as waters of the United States
under this section;
(v)
All tributaries, as defined in paragraph
(o) (3) (iii) of this section, of waters
identified in paragraphs (o) (1) (1) through
(iii) of this section;
(vi)
All waters adjacent to a water identified
in paragraphs (o) (1) (i) through (v) of
this section, including wetlands, ponds,
lakes, oxbows, impoundments, and similar
waters;
(vii)
All waters in paragraphs (o) (1) (vii) (A)
through (E) of this section where they are
determined, on a case-specific basis, to
have a significant nexus to a water
identified in paragraphs (o) (1) (i) through
(iii) of this section. . .
4-
Clean Water Rule: Definition of "Waters of the United States",
80 Fed. Reg. 37,054-01, § 230.3(o) (1) (June 29, 2015) (to be
codified at 40 C.F.R. pt. 230) . Plaintiff specifically relies on
the New Rule's definition for "tributary," which states:
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The terms tributary and tributaries each mean a water
that contributes flow, either directly or through
another water (including an impoundment identified in
paragraph (o) (1) (iv) of this section), to a water
identified in paragraphs (0) (1) (i) through (iii) of
this section that is characterized by the presence of
the physical indicators of a bed and banks and an
ordinary high water mark. These physical indicators
demonstrate there is volume, frequency, and duration
of flow sufficient to create a bed and banks and an
ordinary high water mark, and thus to qualify as a
tributary. A tributary can be a natural, man-altered,
or man-made water and includes waters such as rivers,
streams, canals, and ditches not excluded under
paragraph (o) (2) of this section. A water that
otherwise qualifies as a tributary under this
definition does not lose its status as a tributary if,
for any length, there are one or more constructed
breaks (such as bridges, culverts, pipes, or dams), or
one or more natural breaks (such as wetlands along the
run of a stream, debris piles, boulder fields, or a
stream that flows underground) so long as a bed and
banks and an ordinary high water mark can be
identified upstream of the break. A water that
otherwise qualifies as a tributary under this
definition does not lose its status as a tributary if
it contributes flow through a water of the United
States that does not meet the definition of tributary
or through a non-jurisdictional water to a water
identified in paragraphs (o) (1) (i) through (iii) of
this section.
Id. at § 230.3(o) (3) (iii).
Plaintiff argues that Jones Creek, Willow Lake, and their
tributaries at issue in this case fall under the definitions of
"waters of the United States" and "tributaries" enumerated in
the New Rule, and thus satisfy the jurisdictional waters element
for their CWA claims. Particularly, Plaintiff points out that
the "Court acknowledged that [contested waters] 51, S2, S3, and
Jones Creek are tributaries" and recognized that Willow Lake was
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formed by "damming and impounding Jones Creek." Dkt. No. 498,
pp. 4-5 (citing Order at p. 3) . Plaintiff also argues that
various expert witnesses, on behalf of both the Plaintiff and
Defendants, have described the contested waters as
"tributaries." See Dkt. No. 498, p. 5.
Additionally, Plaintiff argues that evidence in the record
satisfies the New Rule's "tributary" definition by establishing
that some of the contested waters have the requisite "high water
mark." To reach this conclusion, Plaintiff relies on the New
Rule's definition of "high water mark," § 230.3(o) (3) (vU3, as
well as the Georgia Environmental Protection Division's
definition for "stream bank," which is determined, in part, by
identifying the line of "wrested vegetation" in a stream. Ga. R.
& Regs. § 391-3-7-.01(y) .
Finally, Plaintiff suggests that FEMA flood zone maps that
have been entered into the record identify each of the contested
waters as "tributaries." These maps, Plaintiff argues, also
"mark the baseline water flow of the stream, and indicate the
"The term ordinary high water mark means that line on the shore established
by the fluctuations of water and indicated by physical characteristics such
as a clear, natural line impressed on the bank, shelving, changes in the
character of soil, destruction of terrestrial vegetation, the presence of
litter and debris, or other appropriate means that consider the
characteristics of the surrounding areas." Glean Water Rule: Definition of
"Waters of the United States", 80 Fed. Reg. 37,054-01, § 230.3(o) (3) (vi)
(June 29, 2015) (to be codified at 40 C.F.R. Pt. 230).
"'Stream Bank' means the confining cut of a stream channel and is usually
identified as the point where the normal stream flow has wrested the
vegetation. .
." Ga. R. & Regs. § 391-3-7-.01(y).
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I
zones of possible flooding—or, in other words, the ordinary high
water mark." Dkt. No. 498, p. 6.
By promulgating the New Rule, the EPA has made clear that
it intends to define what constitutes "waters of the United
States" for purposes of the CWA. What is less clear, however, is
whether the EPA's New Rule should apply to alleged violations
that occurred before the New Rule was effective. Initially, JCI
was silent on the issue of the retroactive effect of a new
administrative rule. Dkt. No. 498. Following Defendants'
arguments that the New Rule did not apply retroactively, see
generally dkt. nos. 500, 501, JCI then contended that the New
Rule is binding on this Court and its application is not
retroactive because: (1) the historical rule contains the same
categorical jurisdiction for the waters at issue here as is
provided by the New Rule; (2) Rapanos never invalidated the
historical rule; (3) Robison improperly applied the significant
nexus test; and (4) Defendants did not rely on a prior
jurisdictional determination to its detriment. See génerall
Dkt. Nos. 507, 508. Case law on the retroactivity of
administrative rules, along with the terms of the New Rule
itself, suggest that the New Rule should not be applied
retroactively in this case.
Courts have long held that retroactive interpretation of
statues is disfavored.
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I
By virtue of the inherent repugnance of ex post
facto imposition of civil liabilities, it is not
surprising that the Supreme Court's teaching in this
area is, upon analysis, decidedly unfriendly to
statutory interpretations that would effect a latterday burdening of a completed act—lawful at the time it
was done—with retroactive liability.
Ralis v RFE/RL, Inc., 770 F.2d 1121, 1127 (D.C. Cir. 1985)
(citing Union Pac. Ry. v. Laramie Stock Yards Co., 231 U.S. 190
199 (1913) ("[T]he first rule of construction is that
legislation must be considered as addressed to the future, not
the past. . . . [A] retrospective operation will not be given to
a statute which interferes with antecedent rights . . . unless
such be 'the unequivocal and inflexible import of the terms and
the manifest intention of the legislature.'")). The presumption
against retroactivity applies to administrative rules as well:
"congressional enactments and administrative rules will not be
construed to have retroactive effect unless their language
requires this result." Bowen v. Georgetown Univ. Hosp., 488 U.S.
204, 208 (1988)
;
5
see also Sierra Club v. TVA, 430 F.3d 1337,
1351 (11th Cir. 2005) ("Retroactive application of
The Supreme Court in Bowen went on to hold that "[b]y the same principle, a
statutory grant of legislative rulemaking authority will not, as a general
matter, be understood to encompass the power to promulgate retroactive rules
unless that power is conveyed by Congress in express terms." Bowen, 488 U.S.
at 208. Plaintiff here has addressed the New Rule's retroactive application
generally, but has failed to show where the CWA expressly grants the EPA
authority to issue retroactive administrative rules such as the New Rule
defining "waters of the United States." But even if Congress has granted that
authority to the EPA, the New Rule by its terms does not provide for
retroactive application in this case. Thus, this Court's analysis will rest
on the language of the New Rule alone, and the Court need not look to the CWA
to see if the EPA actually has retroactive rulemaking authority in this
specific context.
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11
administrative rules is highly disfavored, and they will not be
construed to have retroactive effect unless their language
requires this result") (quotations omitted)
Here, Plaintiff has not shown that the New Rule's language
requires it to have retroactive effect in this particular case.
~
I
In fact, at least for purposes of the enacting agencies' own
jurisdictional determinations made before the New Rule's
effective date, "the agencies' actions are governed by the rule
in effect at the time the agency issues a jurisdictional
determination or permit authorization, not the date of a permit
application request for authorization, or request for a judicial
determination." 80 Fed. Reg. at 37,074. Thus, the EPA does not
consider the New Rule to be retroactive for some of its own
jurisdictional determinations. Additionally, the fact of an
effective date suggests that the New Rule is not intended to be
applied retroactively. "There is no point in specifying an
effective date if a provision is to be applied retroactively."
Sierra Club, 430 F.3d at 1351 (concluding that an administrative
evidentiary rule does not apply retroactively because the
inclusion of an effective date suggests otherwise)
.
Thus,
Plaintiff has not pointed to any language in the New Rule
expressly requiring retroactive application, and the text of the
New Rule generally suggests that it should not be applied
retroactively.
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Ip
Moreover, the Court finds JCI's remaining arguments
unpersuasive. First, JCI's argument that the New Rule is simply
a restatement of existing regulations held inapplicable in
Robison negates its prior contention that the New Rule
constitutes an intervening change in controlling law. See Dkt.
No. 507, p. 1 ("the New Rule's categorical jurisdiction of
tributaries and impoundments is binding on this court, thus the
New Rule constitutes an intervention in the controlling law.")
Even if the New Rule is simply a restatement of existing
regulations, JCI cannot successfully argue, pursuant to Fed. R.
Civ. P. 59(e), that the New Rule constitutes an intervening
change of law. The basis for JCI's Motion for Reconsideration
would still fail.
If the New Rule constitutes a change of law, it is clear,
for the reasons set forth above, that the New Rule does not
apply retroactively. Although JCI cites to Arkema Inc. v.
E.P.A., 618 F.3d 1, 7 (D.C. Cir. 2010), for support, Arkema
supports Defendants' arguments. Id. (citing Nat'l Mining Ass'n
v. U.S. Dep't of Interior, 177 F.3d 1, 8 (D.C. Cir. 1999)
(explaining where a rule merely narrows "a range of possible
interpretations" to a single "precise interpretation," it may
change the legal landscape in a way that is impermissibly
retroactive.)). Here, applying the New Rule in the instant
matter would create liability and impose duties upon Defendants
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13
for actions that occurred prior to the effective date of the New
Rule and that this Court already determined did not violate the
CWA. 6
Second, there is nothing to suggest that Robison is not
controlling precedent in the Eleventh Circuit or that the
Eleventh Circuit misapplied Rapanos by applying a significant
nexus test to a tributary. See, e.g., Dkt. No. 507, pp. 8 - 12;
Dkt. No. 508, pp. 7-12. Indeed, JCI's request that this Court
credit its argument that Robison incorrectly applied the
significant nexus test contradicts its earlier position that
Robison controls the case at hand. See Dkt. No. 436-2, p. 10 n.
4 ("Robison invoked the significant nexus test, and now all
determinations of water of the United States under the CWA in
the Eleventh Circuit must be made pursuant to it.")
Finally, Defendants follow their retroactivity arguments
with an onslaught of other reasons the New Rule does not justify
reconsideration in this case: the record evidence contains no
actual evidence of a "high water mark" in the contested waters;
the New Rule is not entitled to Chevron deference; the New Rule
is currently being challenged under the Administrative
Procedures Act in four separate lawsuits brought by at least
6
As this Court has noted, the New Rule does not apply retroactively in this
case. Although JCI argues that whether a rule applies retroactively requires
a 'judgment [that] is informed by considerations of notice, reliance and
settled expectations," dkt. no. 507, p. 12; dkt. no. 508, p. 12, it is clear
that applying the New Rule here would make Defendants liable for past
conduct. Given the presumption against retroactivity, JCI's final argument
in support of its Motion for Reconsideration is unpersuasive.
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14
twenty-seven states; and the New Rule faces challenges from both
the House of Representatives and the Senate, and thus may never
become controlling law. Whether or not these arguments have
merit, the text of the New Rule and binding precedent regarding
the retroactivity of administrative rules are alone enough for
the Court to hold that Plaintiff has failed to meet its burden
of showing "facts or law of a strongly convincing nature" to
induce the Court to revise its prior ruling
. 7
See Augusta-
Richmond Cnty., 2012 WL 1355575, at *1.
c. Plaintiff Cannot Raise New Legal Theories as to Why
CSXT Is a "State Actor" in a Motion for
Reconsideration
In its Order, the Court dismissed Plaintiff's federal
takings claim against Defendant CSXT because Plaintiff had not
shown that CSXT was a state actor. Order at p. 37. Plaintiff's
theory for the federal takings claim (Count 11) was that
Defendant CSXT's track construction upstream of Willow Lake
caused flooding and an accumulation of sediment in Willow Lake,
and thus amounted to a taking under the Constitution that was
actionable under 42 U.S.C. § 1983. Section 1983 claims typically
only apply to state actors or certain private entities acting in
a public capacity. The Court noted that a private party can only
This holding should not be construed as a pronouncement that the New Rule
generally is not retroactively applicable. However, Plaintiff's failure to
satisfy its heightened burden to carry a motion for reconsideration compels
the holding that the New Rule is not retroactively applicable to the
discharges and waters at issue in this particular case.
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be treated as a state actor for § 1983 purposes if one of the
following conditions is met:
(1) the State has coerced or at least significantly
encouraged the action alleged to violate the
Constitution ("State compulsion test"); (2) the
private parties performed a public function that was
traditionally the exclusive prerogative of the State
("public function test"); or (3) "the State had so far
insinuated itself into a position of interdependence
with the private parties that it was a joint
participant in the enterprise" ("nexus/joint action
test")
Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.
2001) (editorial marks removed) (quoting NEC, Inc. v. Cornms.
Workers of Am., 860 F.2d 1022, 1026-27 (11th Cir. 1988)). The
Court then conducted the "state actor" analysis using only the
"nexus/joint action test," because that was the only legal
theory Plaintiff had proffered in arguing that Defendant CSXT
was a state actor.
Now, Plaintiff wishes the Court to reconsider this analysis
by considering whether Defendant CSXT is a state actor pursuant
to the "public function test"—a test that Plaintiff failed to
argue or ask the Court to consider during summary judgment
briefing. But motions for reconsideration "should not be used to
raise legal arguments which could and should have been made
before the judgment was issued." Augusta-Richmond Cnty., 2012 WL
1355575 at *2 (quoting Lockardv. Equifax, Inc., 163 F.3d 1259,
1267 (11th Cir. 1998)) . Plaintiff could and should have raised
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16
the public function theory earlier, and the Court will not
consider it at this late juncture. 8
Plaintiff has failed to show a compelling reason for the
Court to reconsider its prior holding, and its Motion for
Reconsideration (Dkt. No. 498) is therefore DENIED.
II. Plaintiff's Motion to Stay the Proceedings (Dkt. No. 499)
Plaintiff also filed a Motion to Stay the Proceedings
alternatively to its Motion for Reconsideration. Dkt. No. 499.
Plaintiff argues that, if the Court is not inclined to apply the
EPA's New Rule for defining "waters of the United States" at
this time because that Rule is not yet effective, the Court
should stay the case until the Rule becomes effective. Id. at
pp. 1-3.
A stay in this case would be inappropriate for the same
reasons discussed in Part I.b supra: effective or otherwise, the
New Rule is not retroactively applicable in this case. The
controlling law in this case did not change on August 28, 2015,
and there is no reason for the Court to stay the case until
8
If the Court were to entertain Plaintiff's request for it to consider the
"state actor" theory it failed to argue during summary judgment briefing, it
would note that the three "state actor" tests (along with others) are not
necessarily discrete and subject to successive application. The Supreme Court
has queried "[w]hether these different tests are actually different in
operation or simply different ways of characterizing the necessarily factbound" state-action analysis. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939
(1982); see also NBC, 860 F.2d at 1026 (noting the same). In the end, "[o]nly
by sifting facts and weighing circumstances can the nonobvious involvement of
the State in private conduct be attributed its true significance." Burton v.
Wilmington Parking Auth., 365 U.S. 715, 722 (1961). The Court has sifted the
facts and weighed the circumstances once already—it need not do so again.
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17
then. Plaintiff's Motion to Stay the Proceedings (Dkt. No. 499)
is therefore DENIED.
CONCLUSION
Plaintiff has not shown that the EPA's New Rule defining
"waters of the United States" applies to this case either today
or when it became effective on August 28, 2015. Nor has
Plaintiff shown a compelling reason for the Court to redo the
state-action analysis as to Defendant CSXT with a test Plaintiff
failed to raise in its summary judgment briefing. Therefore,
Plaintiff's Motion for Reconsideration (Dkt. No. 498) and its
Motion to Stay the Proceedings (Dkt. No. 499) are both DENIED.
SO ORDERED, this 12TH day of February, 2016.
Z
7
.
(~,~
LISA GODSEY OOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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II
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