Waste Action Project v. Buckley Recycle Center Inc

Filing 183

ORDER denying Defendants' 176 Motion to Modify Consent Decree. WAP's 178 Cross-Motion for Rule 11 Sanctions is DENIED. Signed by Judge Ricardo S. Martinez. (SB)

Case 2:13-cv-01184-RSM Document 183 Filed 10/26/22 Page 1 of 4

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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WASTE ACTION PROJECT,
Plaintiff,

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v.

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BUCKLEY RECYCLE CENTER, INC., et
al.,

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Defendants.

CASE NO. C13-1184 RSM
ORDER DENYING MOTION TO MODIFY
CONSENT DECREE

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This matter comes before the Court on Defendant Buckley Recycle Center (“BRC”)’s
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Amended Motion to Modify Consent Decree, Dkt. #176. BRC requests a modification “to allow
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BRC either: (1) an 18-month break from clearing acreage to process permitting for Enumclaw;
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or (2) the right to exercise a ‘pass’ for up to four (4) of the required times for clearing an
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additional acre.” Plaintiff Waste Action Project (“WAP”) opposes this Motion and moves for
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Rule 11 sanctions. Dkt. #178. Neither party has requested oral argument.
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The background facts of this case have been thoroughly detailed in the Court’s December
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1, 2020, Order on Pending Motions and need not be repeated. See Dkt. #165. The parties seem
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to think so too. See Dkt. #176 at 2 n.1 (“[d]ue to the Court’s familiarity with this matter, a lengthy
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recitation of facts with concurring cites to the record is foregone in this brief…”); Dkt. #176 at 5
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ORDER – 1

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(“The Court’s recitation of the background facts set forth in its December 1, 2020, Order on

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Pending Motions is incorporated here by reference.”).

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Given BRC’s code violations and failure to utilize its “best efforts,” the Court found that

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BRC had violated the Consent Decree and modified it to require BRC to vacate the Spencer

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Property and clean it up within four years of the date of the Order, rather than starting the clock

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after permitting was completed. See Dkt. #165 at 20; Dkt. #143.

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In the last two years, BRC has attempted on some level to comply with the Consent

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Decree and the Court’s Modification Order. See Dkt. #176 at 3–4 (discussing the clearing of

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some land). However, BRC now admits to the Court that it will have “a significant problem

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moving forward with compliance,” blaming King County for “process[ing] the permit

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application at a snail’s pace,” “the economic downturn triggered by the COVID pandemic,”

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staffing issues, and even the weather. Id. at 5–6.

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WAP counters with a litany of BRC’s misdeeds related to this case and reminds the Court
of its previous findings and rulings. See Dkt. #178 at 2 and 5–6.

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A motion to modify a consent decree is properly considered under Rule 60(b). See Dkt.

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#165 at 14; Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 378 (1992). Although BRC does

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not cite Rule 60(b), it appears that BRC is arguing for relief under either Rule 60(b)(5) or (6).

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Rule 60(b)(5) “provides a means by which a party can ask a court to modify or vacate a judgment

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or order if a significant change either in factual conditions or in law renders continued

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enforcement detrimental to the public interest.” Horne v. Flores, 557 U.S. 433, 447 (2009). Rule

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60(b)(6) is a catchall provision that depends on the “exercise of a court’s ample equitable power

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… to reconsider its judgment.” Phelps v. Alameida, 569 F.3d 1120, 1135 (9th Cir. 2009). Under

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Rule 60(b)(5), the “party seeking modification of a consent decree bears the burden of

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establishing that a significant change in circumstances warrants revision of the decree.” Rufo,
ORDER – 2

Case 2:13-cv-01184-RSM Document 183 Filed 10/26/22 Page 3 of 4

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502 U.S. at 383. If this “heavy burden” is met, the “district court must then determine whether

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the proposed modification is suitably tailored to resolve the problems created by the changed

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factual or legal conditions.” United States v. Asarco, Inc., 430 F.3d 972, 979-80 (9th Cir. 2005).

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A movant seeking relief under Rule 60(b)(6) is required to “show ‘extraordinary circumstances’

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justifying the reopening of a final judgment.” Martinez v. Shinn, No. 21-99006, 2022 U.S. App.

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LEXIS 13097, *19 (9th Cir. May 16, 2022) (citations omitted). “Extraordinary circumstances

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occur where there are ‘other compelling reasons’ for opening the judgment” that prevented the

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movant from raising the basis of the motion during the pendency of the case. Id. (citations

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omitted).

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As noted in the prior Order, the Court also has equitable power to modify the terms of a

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consent decree. See Keith v. Volpe, 784 F.2d 1457, 1461 (9th Cir. 1986) (“[E]ven in the absence

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of express authorization in the decree or request from the parties, the power to modify in

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appropriate circumstances is inherent in the equity jurisdiction of the court.”) (citation omitted).

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Modification is especially appropriate “where a better appreciation of the facts in light of

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experience indicates that the decree is not properly adapted to accomplishing its purposes.” Id.

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at 1460 (quoting King-Seeley Thermos Co. v. Aladdin Industries, 418 F.2d 31, 35 (2d Cir. 1969))

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(quotation marks omitted).

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The Court agrees with WAP’s characterization that this Motion “fails to show good cause

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for Court action to allow BRC to continue its illegal Auburn operation beyond the fixed date

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already provided by the December 1, 2020, modification order and instead represents an effort

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to relitigate the parties’ arguments leading to that modification order.” Dkt. #178 at 2. BRC is

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largely responsible for past and current permitting delays and fails to convince the Court

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otherwise. BRC’s other arguments about a change in circumstances are unconvincing, and the

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Court agrees with WAP’s characterizations of BRC’s diligence. WAP goes further, arguing that
ORDER – 3

Case 2:13-cv-01184-RSM Document 183 Filed 10/26/22 Page 4 of 4

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BRC is operating in bad faith, but such is beyond the scope of whether to grant or deny BRC’s

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Motion. BRC has not convinced the Court that a modification under Rule 60(b) or equity is

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justified. The Court declines to strike any of BRC’s evidence.

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The Court declines to award sanctions under Rule 11 at this time, as BRC’s conduct is

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short of the high bar required for such. See Operating Eng’rs. Pension Trust v. A-C Co., 859

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F.2d 1336, 1345 (9th Cir. 1988) (“Rule 11 is an extraordinary remedy, one to be exercised with

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extreme caution.”).

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Accordingly, having considered the briefing of the parties and the remainder of the

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record, the Court hereby FINDS and ORDERS that BRC’s Amended Motion to Modify Consent

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Decree, Dkt. #176, is DENIED. WAP’s Cross-Motion for Rule 11 Sanctions is DENIED.

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Dated this 26th day of October, 2022.

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A

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RICARDO S. MARTINEZ
UNITED STATES DISTRICT JUDGE

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ORDER – 4