Pakootas, et al v. Teck Cominco Metals, et al

Filing 2635

ORDER DENYING MOTIONS FOR RECONSIDERATION; denying 2622 Plaintiff State of Washington's Motion for Clarification and Reconsideration; denying 2628 Defendant Teck Cominco Metals, Ltd.'s Motion for Reconsideration; denying as moot 2630 Defendant's Motion to Expedite Hearing. Signed by Chief Judge Stanley A Bastian. (TNC, Case Administrator) Modified on 6/2/2023 clerical error (TNC, Case Administrator).

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Jun 02, 2023

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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9 JOSEPH A. PAKOOTAS, an individual
10 and enrolled member of the Confederated

No. 2:04-CV-00256-SAB

11 Tribes of the Colville Reservation; and
12 DONALD R. MICHEL, an individual and

ORDER DENYING MOTIONS

13 enrolled member of the Confederated

FOR RECONSIDERATION

14 Tribes of the Colville Reservation, and
15 THE CONFEDERATED TRIBES OF
16 THE COLVILLE RESERVATION,
Plaintiffs,

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and

19 THE STATE OF WASHINGTON,
Plaintiff-Intervenor,

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v.

22 TECK COMINCO METALS, LTD., a
23 Canadian corporation,
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Defendant.
Before the Court are Plaintiff State of Washington’s Motion for Clarification

26 and Reconsideration, ECF No. 2622, and Defendant Teck Cominco Metals, Ltd.’s
27 Motion for Reconsideration, ECF No. 2628, and associated Motion to Expedite
28 Hearing, ECF No. 2630. The motions were considered without oral argument.
ORDER DENYING MOTIONS FOR RECONSIDERATION *1

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PLAINTIFF’S MOTION FOR CLARIFICATION, RECONSIDERATION,

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AND/OR CERTIFICATION

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Plaintiff State of Washington moves the Court to extrapolate its Order

4 Granting Defendant’s Motion for Reconsideration, ECF No. 2617, to clarify
5 whether the Court intended to dismiss its Model Toxics Control Act (“MTCA”)
6 claims in full. The State also moves the Court to (1) reconsider its dismissal of the
7 State’s air pathway theory under MTCA, (2) certify the state law questions to the
8 Washington Supreme Court, and/or (3) enter final judgment on the MTCA claims.
The Court found that the State failed to state a plausible claim under MTCA,

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10 and stated, “Plaintiff State of Washington’s Seventh Cause of Action under the
11 Model Toxics Control Act is DISMISSED, with prejudice.” ECF No. 2617 at 5.
12 The holding is not ambiguous, and clarification is not necessary. The State also did
13 not demonstrate reconsideration of the issue is appropriate or the Court should
14 certify the MTCA claims to the Washington Supreme Court or enter final
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DEFENDANT’S MOTION FOR RECONSIDERATION

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Defendant Teck Cominco Metals, Ltd. moves the Court to reconsider its

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18 Order Denying Defendant’s Motion for Summary Judgment on Ripeness,
19 ECF No. 2624. Teck argues Plaintiffs are required to satisfy two conditions of
20 42 U.S.C. § 9613(g)(1), prior to bringing their natural resource damages claims.
The Court held Plaintiffs provided proper notice of their natural resource

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22 damages claims, and since the pre-suit conditions of § 9613(g)(1) are disjunctive,
23 the Court need not consider the parties’ secondary arguments regarding selection
24 of a remedial action. ECF No. 2624 at 6. The Court decided the issue. Teck did not
25 demonstrate that reconsideration is appropriate.
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ORDER DENYING MOTIONS FOR RECONSIDERATION *2

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Accordingly, IT IS HEREBY ORDERED:

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Plaintiff State of Washington’s Motion for Clarification and

3 Reconsideration, ECF No. 2622, is DENIED.
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Defendant Teck Cominco Metals, Ltd.’s Motion for Reconsideration,

5 ECF No. 2628, is DENIED.
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3.

Defendant’s Motion to Expedite Hearing, ECF No. 2630, is

7 DENIED, as moot.
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IT IS SO ORDERED. The District Court Clerk is hereby directed to enter

9 this Order and to provide copies to counsel.
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DATED this 2nd day of May 2023.

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Stanley A. Bastian

Chief United States District Judge

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ORDER DENYING MOTIONS FOR RECONSIDERATION *3