Persimmon Ridge, LLC v. Jewell et al

Filing 50

OPINION AND ORDER by Judge Terence Kern ; denying 44 Motion to Alter Order/Judgment; denying 45 Motion to Vacate Order/Judgment (lmc, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA

PERSIMMON RIDGE, LLC,
Plaintiff,
v.
RYAN ZINKE, in his official capacity as
Secretary of the United States Department of
Interior UNITED STATES BUREAU OF
INDIAN AFFAIRS, an agency within the
United States Department of Interior; and
WELDON LOUDERMILK, in his official
capacity as Director of the United States
Bureau of Indian Affairs,
Defendants.

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OPINION AND ORDER
Before the Court is the Motion to Alter and Amend Court’s Opinion and Order and Vacate
Judgment filed by Plaintiff, Persimmon Ridge, LLC (“Persimmon”). Docs. 44, 45. Defendants
Ryan Zinke, in his official capacity as Secretary of the United States Department of Interior the
United States Bureau of Indian Affairs (“DOI”), and Weldon Louder, in his official capacity as
Director of the United States Bureau of Indian Affairs (“BIA”), oppose the motion. Doc. 48.
I. Background
In its Opinion and Order of September 18, 2018, the Court granted Defendants’ motion to
Dismiss Plaintiff’s Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). Doc. 42. In so
doing, the Court rejected Plaintiff’s argument that it was entitled to equitable tolling of the six-

year statute of limitations set forth in 28 U.S.C. § 2401(a). Id. at 10. The Court also denied
Plaintiff’s Second Motion to Amend Complaint, finding the proposed amended complaint would
be futile, because Plaintiff had failed to exhaust its administrative remedies with respect to the
claim and the proposed amended complaint would therefore be subject to dismissal. Id. at 12.
In its Motion to Alter and Amend, Persimmon contends that:
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the Court, in its Opinion and Order, erroneously relied on Chance v. Zinke, 898 F.3d 1025
(10th Cir. 2018);

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the Amended Complaint’s allegations of fraudulent concealment were sufficient to invoke
equitable tolling of the statute of limitations at the pleading stage or class action tolling;

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the Court erred in treating older permit approvals as final agency actions; and

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the Court erred in refusing to apply class-action tolling based on Donelson v. United States,
14-CV-316-JHP-TLW, Doc. 45.

II. Standard of Review
A motion to reconsider may be granted on the following grounds: “(1) an intervening
change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct
clear error or prevent manifest injustice.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012
(10th Cir. 2000) (citing Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir.
1995)). In other words, when the court has “misapprehended the facts, a party’s position, or the
controlling law,” a motion to reconsider is appropriate. Id.
III. Analysis
A. Reliance on Chance
Citing United States v. Ward, 718 Fed. Appx. 757 (10th Cir. 2018) (per curium), and Bell
v. Thompson, 545 U.S. 794, 801 (2005), Persimmon argues the Court erred in relying on Chance
because, at the time the Court entered its order, no mandate had been issued in that case. However,
neither case supports this argument. In Ward, the appellate court noted the case had been held in
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abatement pending issuance of the mandate in a related case. 718 Fed. Appx. at 757. In Bell, the
Supreme Court stated. that an appellate court has the power to reconsider its opinion. 545 U.S. at
801. Neither case, however, addressed the propriety of relying on an appellate decision before the
mandate had been issued. In any event, the mandate in Chance was entered on January 10, 2019.
4:16-CV-549-JHP-FHM, Doc. 75.
B. Allegations of Fraudulent Concealment
Persimmon also asserts that the Court, in ruling on the Motion to Dismiss, failed to take
into account the Amended Complaint’s allegations concerning fraudulent conduct by the Osage
Agency. Doc. 44 at 5. In its Opinion and Order, however, the Court discussed the factual
allegations upon which Persimmon based its claim of fraudulent concealment and concluded—as
did the Tenth Circuit in Chance—that the Amended Complaint failed to allege facts establishing
plaintiff had diligently pursued its rights or that any extraordinary circumstances stood in its way.
Doc. 42 at 10 (citing Credit Suisse Sec. (USA) LLC v. Simmonds, 566 U.S. 221, 227 (2012). 1
C. Tolling of Statute of Limitations
Persimmon contends the Court erred in rejecting its claim that it was entitled to tolling of
the six-year statute of limitations found in 28 U.S.C. § 28 U.S.C. §2401(a). However, it raises no
new, previously unavailable evidence or change in the controlling law, but merely argues—as it
did in its response to Defendant’s Motion to Dismiss—that the Amended Complaint sufficiently
alleged facts warranting equitable tolling. Accordingly, the Court declines to revisit this issue.

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The Court noted that in Chance—as in this case—the Amended Complaint alleged plaintiff was
entitled to equitable tolling of the limitations period because (1) he had never been provided notice
of any federal actions which were approved or that the BIA had failed to comply with NEPA prior
to approving the permit; (2) the Osage Agency knowingly concealed that the Agency was granting
approval of leases, APD’s and other major federal actions without conducting any site-specific
environmental analysis prior to granting the approvals; and (3) the Osage Agency’s concealment
was part of an overall scheme to lull the public into inaction and avoid legal action. Doc. 42 at 10.
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Nor is the Court persuaded by Plaintiff’s argument that the filing of the putative class action
Donelson v. United States, 14-CV-316, tolled the statute of limitation for this case under the
doctrine of class action tolling. The Donelson plaintiffs were never certified as a class, and the
Tenth Circuit ultimately affirmed the District Court’s dismissal of the case, holding that the named
plaintiffs lacked standing to pursue most of their claims, and that they failed to identify any specific
final agency action as to claims for which they might possess standing. 730 Fed. Appx. 597, 603
(10th Cir. 2018) (unpublished).
D. Allegation that the Opinion and Order is “Internally Inconsistent”
Persimmon argues that the Court’s September 18, 2018 Opinion and Order is “internally
inconsistent” because it dismissed the Amended Complaint for failure to state a claim but denied
its Motion to Amend the Amended Complaint a second time based on futility. It contends the Court
could not dismiss challenges to certain approvals as barred by the applicable statute of limitations
and “dismiss challenges to other approvals for failure to exhaust administrative remedies.” Doc.
44 at 6-7. Persimmon’s argument, however, mischaracterizes the Court’s decision.
In its Opinion and Order, the Court granted Defendants’ Motion to Dismiss because the
Amended Complaint failed to allege facts establishing either that the alleged violations occurred
after January 17, 2011 (the six-year limitations period), or that with respect to violations occurring
before that date, it had diligently pursued its rights or that any extraordinary circumstances stood
in its way. Doc. 42 at 10. It denied Plaintiff’s Second Motion to Amend Complaint on the basis
of futility. Id. Specifically, the proposed amended complaint described leases and applications for
drilling permits approved by the Osage Agency between December 6, 2006 and May 9, 2011. It
made no mention of any specific approval of leases on Persimmon’s property, but rather alleged,
generically, that “[s]ince the enactment of NEPA through the date of filing of the Complaint herein,

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the Osage Superintendent approved oil and gas leases, APDs and assignments directly affecting
Persimmon’s property without conducting any environmental analysis.” Doc. 18, ¶55. Only the
May 9, 2011, approval of a drilling permit occurred after the January 17, 2011, statute of
limitations date. Id. at 11. And Persimmon failed to exhaust its remedies with respect to the May
9, 2011, approval of the Redfork drilling permit—which is a prerequisite to filing suit against the
Defendants. As a result, the claim would be subject to dismissal. As a result, its Motion to Amend
was denied as futile.
Accordingly, the Court rejects Persimmon’s argument that its Opinion and Order is
internally inconsistent.
IV. Conclusion
For the reasons set forth above, Plaintiff’s Motion to Alter and Amend Court’s Opinion
and Order and Vacate Judgment (Docs. 44-45) is denied.
ENTERED this 31st day of July, 2009.

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TERENCE C. KERN
United States District Judge

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