Atchafalaya Basinkeeper et al v. Bostick et al
ORDER & REASONS. It is ORDERED that Plaintiff's 58 Motion for Reconsideration is DENIED. Signed by Judge Carl Barbier. (gec)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BOSTICK ET AL.
ORDER & REASONS
Before the Court is a Motion for Reconsideration (Rec. Doc.
58) filed by Plaintiffs, Atchafalaya Basinkeeper and Louisiana
Crawfish Producers Association-West, and an opposition thereto
(Rec. Doc. 61) filed by Defendants, the United States Army Corps
(collectively, “the Corps”). Having considered the motion and
legal memoranda, the record, and the applicable law, the Court
finds that the motion should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This dispute arises from the Corps’ August 2012 decision to
authorize under a general permit a request to build a ring levee
and access road in the Atchafalaya Basin in Iberville Parish,
culture. (See Rec. Doc. 39-1, at 22; Rec. Doc. 39-12, at 1; Rec.
Doc. 43-1, at 2-3.) The Louisiana Black Bear’s critical habitat
extends into the Atchafalaya Basin in the northern portion of
Iberville Parish. (Rec. Doc. 43-2, at 15.) Additionally, certain
Sherburne Wildlife Management Area. (See Rec. Doc. 39-12, at 12; Rec. Doc. 43-2, at 13-14.)
District of the Corps (NOD-13) to build a ring levee and access
road for its well in the Atchafalaya Basin. (Rec. Doc. 43-1, at
because Expert Oil failed to meet the mitigation requirement
that arose as a result of its plan to fill wetlands with the
reapplied for Corps authorization under NOD-13 to build the road
and ring levee (hereinafter, the “2012 Project”). Id. On August
authorized the 2012 Project under NOD-13. Id. The letter listed
referenced the conditions of approval contained in NOD-13.
On March 20, 2014, Plaintiffs exercised their right under
Section 702 of the Administrative Procedure Act (APA) and filed
suit against the Corps, alleging that the Corps’ authorization
of the 2012 Project under NOD-13 violated the terms of NOD-13;
the Clean Water Act (CWA), 33 U.S.C. § 1251, et seq.; and the
National Environmental Policy Act (NEPA), 42 U.S.C. § 4321, et
seq. (Rec. Doc. 1.) The parties agreed to resolve the action on
cross motions for summary judgment.
On June 19, 2015, this Court granted summary judgment in
favor of Defendants based on its review of the administrative
record. (Rec. Doc. 50.) The Court held that the Corps’ decision
to authorize the 2012 Project under NOD-13 did not violate the
CWA or the NEPA by exceeding the scope of NOD-13. Id. at 27.
arbitrary and capricious in authorizing the 2012 Project under
NOD-13. Id. Therefore, the Corps’ decision was upheld. Id. On
July 1, 2015, the Court entered judgment in favor of Defendants
and dismissed Plaintiffs’ suit with prejudice. (Rec. Doc. 51.)
(Rec. Doc. 58) on August 7, 2015. 1
motion on September 15, 2015. (Rec. Doc. 61.)
Plaintiffs filed their motion for reconsideration “on the
grounds of demonstrable misrepresentation or misconduct by the
opposing party that likely affected the outcome of this case.”
(Rec. Doc. 58, at 4.) First, Plaintiffs argue that the Corps
Plaintiffs initially filed their Motion for Reconsideration on July 29,
2015. (Rec. Doc. 55.) In an attempt to correct a deficiency in their initial
motion, Plaintiffs refiled their motion on July 30, 2015. (Rec. Doc. 56.)
However, this motion was also deemed deficient. Following the correction of
certain procedural errors, Plaintiffs refiled their motion on August 7, 2015.
(Rec. Doc. 58.)
misled the Court into thinking that permatized limestone roads
can be removed. Id. at 2. Second, Plaintiffs argue that the
Corps misinformed the Court about the history of an elevated
road that was connected to the 2012 Project. Id. at 2-3. Third,
Plaintiffs argue that the Corps misinformed the Court about the
tracts of land closest to the drilling site, which Plaintiffs
managed by the Louisiana Department of Wildlife and Fisheries.
Id. at 3. Lastly, Plaintiffs argue that the Corps misrepresented
the impact of the 2012 Project on the Louisiana Black Bear’s
critical habitat. Id.
In opposition, Defendants contend that Plaintiffs’ motion
should be rejected for several reasons. First, Defendants argue
that Plaintiffs’ motion merely rehashes the same arguments that
they raised in their motion for summary judgment. (Rec. Doc. 61,
at 6.) Second, Defendants argue that Plaintiffs have provided no
evidence that the Corps misled the Court by misrepresenting or
withholding any evidence. Id. Third, Defendants argue that the
exhibits Plaintiffs submitted in support of their motion for
reconsideration provide information that is the same as or very
similar to the information in the exhibits Plaintiffs submitted
in support of their motion for summary judgment. Id. In sum,
Defendants argue that Plaintiffs’ arguments and new exhibits do
not justify reconsideration of this Court’s previous ruling.
LEGAL STANDARD AND DISCUSSION
The Federal Rules of Civil Procedure do not expressly allow
motions for reconsideration of an order. Bass v. U.S. Dep’t of
Agric., 211 F.3d 959, 962 (5th Cir. 2000). The Fifth Circuit
treats a motion for reconsideration challenging a prior judgment
as either a motion “to alter or amend” under Rule 59(e) or a
Federal Rules of Civil Procedure. Lavespere v. Niagara Mach. &
Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990), abrogated
on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069
(5th Cir. 1994). The difference in treatment is based on timing.
If the motion is filed within twenty-eight days of the entry of
judgment, then it falls under Rule 59(e). Id.; accord Fed. R.
Civ. P. 59(e). However, if the motion is filed more than twentyeight days after the entry of judgment, but not more than one
year after the entry of judgment, it is governed by Rule 60(b).
Lavespere, 910 F.2d at 173; accord Fed. R. Civ. P. 60(c). In the
Reconsideration (Rec. Doc. 55) on July 29, 2015, which is within
twenty-eight days from the entry of judgment on July 1, 2015.
corrected the deficiency and refiled their motion on August 7,
Reconsideration (Rec. Doc. 58) as a motion to alter or amend
under Rule 59(e).
“extraordinary remedy” used “sparingly” by the courts. Templet
v. Hydrochem, Inc., 367 F.3d 473, 479 (5th Cir. 2004). A motion
judgment and is permitted only in narrow situations, “primarily
to correct manifest errors of law or fact or to present newly
discovered evidence.” Id.; see also Schiller v. Physicians Res.
Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003). Manifest error is
typically defined as “[e]vident to the senses, especially to the
sight, obvious to the understanding, evident to the mind, not
obscure or hidden, and is synonymous with open, clear, visible,
evidence.” In re Energy Partners, Ltd., No. 09-32957, 2009 WL
Pechon v. La. Dep't of Health & Hosp., No. 08-664, 2009 WL
2046766, at *4 (E.D. La. July 14, 2009) (“‘[M]anifest error’ is
complete disregard of the controlling law.’”).
The Fifth Circuit has noted that “such a motion is not the
arguments that could have been offered or raised before entry of
judgment.” Templet, 367 F.3d at 478-79. Nor should it be used to
“re-litigate prior matters that . . . simply have been resolved
to the movant’s dissatisfaction.” Voisin v. Tetra Techs., Inc.,
No. 08-1302, 2010 WL 3943522, at *2 (E.D. La. Oct. 6, 2010).
Thus, to prevail on a motion under Rule 59(e), the movant must
intervening change in the controlling law; (2) the availability
error in law or fact. Schiller, 342 F.3d at 567; see also Ross
v. Marshall, 426 F.3d 745, 763 (5th Cir. 2005) (“A motion to
manifest error of law or fact or must present newly discovered
change in controlling law since the Court’s Order and Reasons
dated June 19, 2015. Moreover, Plaintiffs have not pointed to
any newly discovered evidence previously unavailable, nor have
they established a manifest error of law or fact. Furthermore,
Plaintiffs have provided no evidence that the Corps misled the
provide information that is similar to the information in the
previously heard and considered by the Court, and the Court’s
previous ruling was not based on an erroneous view of the law or
an erroneous assessment of the evidence. Therefore, Plaintiffs’
arguments and new exhibits provide no basis for reconsideration.
Reconsideration (Rec. Doc. 58) is DENIED.
New Orleans, Louisiana this 23rd day of September, 2015.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
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