GLW Ventures, LLC. v. United States Department of Agriculture, U.S. Forest Service et al

Filing 25

ORDER denying 23 United States' Motion for Reconsideration, signed by Judge Ronald B. Leighton.(DN)

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HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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GLW VENTURES, LLC,

CASE NO. 3:12-cv-05140-RBL

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Plaintiff,
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ORDER DENYING
RECONSIDERATION

v.
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(Dkt. # 23)
U.S. DEPARTMENT OF
AGRICULTURE, U.S. FOREST
SERVICE, an agency of the United States,
and SKAMANIA COUNTY,
WASHINGTON, a political subdivision
of the State of Washington,

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Defendants.

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The United States requests reconsideration of the Court’s order denying its motion to

2 dismiss based on a lack of jurisdiction and failure to state a claim. Order, Dkt. #19. Under Local
3 Rule 7(h):
Motions for reconsideration are disfavored. The court will ordinarily deny such motions
in the absence of a showing of manifest error in the prior ruling or a showing of new facts
or legal authority which could not have been brought to its attention earlier with
reasonable diligence.

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The Ninth Circuit has called reconsideration an “extraordinary remedy, to be used sparingly in
the interests of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (quoting 12 James Wm. Moore et al., Moore’s
Federal Practice § 59.30[4] (3d ed. 2000). “Indeed, a motion for reconsideration should not be
granted, absent highly unusual circumstances, unless the district court is presented with newly
discovered evidence, committed clear error, or if there is an intervening change in the controlling
law.” Id. (quoting 389 Orange Street Partners, 179 F.3d 656, 665 (9th Cir. 1999)).

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The United States has not shown grounds for reconsideration. First, the Government
asserts that the Court improperly found jurisdiction under the Columbia River Gorge National
Scenic Area Act, 16 U.S.C. § 544 et seq., because neither addressed § 544(m)(b)(4), the section
on which the Court relied. The Government states: “[T]his Court issued an order in which it
concluded, o[n] grounds neither advanced by plaintiff nor addressed by federal defendant, that
subject matter jurisdiction exists over plaintiff’s claim under . . . § 544(m)(b)(4).” The
Government appears, however, to have overlooked page two of Plaintiff’s response to its motion
to dismiss (Pl.’s Resp., Dkt. #14), as well as the large block quote on page seven, and the
subsequent paragraphs arguing that jurisdiction exists under § 544(m)(b)(4).

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Second, the Government argues that it has taken no “final action” under §544(m)(b)(4);
rather, it has simply refused to give its consent. The Government imports a definition of “action”

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1 from the Administrative Procedure Act, 5 U.S.C. § 553 et seq. (“APA”). Def.’s Mot. for
2 Reconsideration at 3. Under the APA, an agency statement is reviewable action if it announces a
3 rule of law, imposes obligations, determines rights or liabilities, or fixes legal relationships.
4 See Am. Trucking Assoc. v. U.S., 755 F.2d 1292, 1296 (7th Cir. 1985). The Government argues
5 that nothing it has done meets this definition. The Complaint suggests otherwise.
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Plaintiff states that “Skamania County will not process GLW Ventures’ application

7 because the U.S. Forest Service has informed the County that the Adjusted Tracts violate the
8 Easement Deed.” Compl. ¶ 14. Plaintiff believes that it is not amending the Easement Deed at
9 all, but merely applying for a lot line adjustment as permitted by the Skamania County Code.
10 Pl.’s Resp. to Order to Show Cause at 4, Dkt. #20. It appears to the Court that the Government’s
11 conduct determines Plaintiff’s right to a lot line adjustment.
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Third, the Government argues that the sovereign-immunity waiver in the Columbia River

13 Gorge Act does not apply because the Forest Service was acting solely as a landowner, not
14 pursuant to statutory authority. “While the [Columbia River Gorge Act] certainly authorized the
15 expenditure of public money to initially acquire either land or interests in land within certain
16 areas of the Gorge, nothing in the statute governs how the Forest Service will administer those
17 interests once acquired.” Def.’s Mot. for Reconsideration at 4, Dkt. #23. In other words, “the
18 Government has enforceable rights by virtue of the Conservation Easement Deed and the
19 inherent authority to enforce those rights by virtue of its status as an owner of an interest in
20 land”—independent of the Columbia River Gorge Act. Id. at 5 (citing Cotton v. U.S., 52 U.S.
21 229 (1850)). But, the Complaint asserts that the Forest Service has represented that it cannot
22 amend the Easement Deed without congressional action. Compl. ¶ 15. If true, the only possible
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1 restraint would be the Columbia River Gorge Act. Thus, central to the case is the Government
2 ability—not merely its willingness—to amend an Easement Deed implemented under § 544.
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Further, it is not clear to what extent the Easement Deed enables the Government to

4 restrain GLW from adjusting the lot lines between the two easements held by GLW. If there is
5 precedent on the issue, the Government has not brought it to the Court’s attention.
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The Government may very well be correct in its legal position under both the Columbia

7 River Gorge Act and its rights under the Easement Deed. Its arguments are, however, best
8 considered at summary judgment.
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Defendant’s motion for reconsideration (Dkt. #23) is DENIED.

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Dated this 26th day of September, 2012.

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A

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Ronald B. Leighton
United States District Judge

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